     12-1857-cv
     Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of Commerce
 1
 2                                   UNITED STATES COURT OF APPEALS
 3                                          For the Second Circuit
 4                                    _______________________________
 5
 6                                                 August Term, 2012
 7
 8   Argued:           August 22, 2012                          Decided: September 5, 2012
 9                                           Amended: September 6, 2012
10
11                                            Docket No. 12-1857-cv
12                                      _______________________________
13
14                           COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS,
15                                                                                         Plaintiff-Appellant,
16
17                                                         —v.—
18
19                                   CANADIAN IMPERIAL BANK OF COMMERCE,
20                                                                                        Garnishee-Appellee,
21
22                                               WILLIAM H. MILLARD,
23                                                                                                 Defendant,
24
25                                            THE MILLARD FOUNDATION,
26                                                                                                 Intervenor.
27
28                                      _______________________________
29
30                            Before: CABRANES, STRAUB AND HALL, Circuit Judges.
31                                    _______________________________
32
33          On appeal from an order of the United States District Court for the Southern District of
34   New York (Lewis A. Kaplan, Judge) denying Plaintiff-Appellant’s application for a turnover
35   order pursuant to N.Y. C.P.L.R. § 5225(b). We CERTIFY questions to the New York Court of
36   Appeals regarding the appropriateness of such an order where the assets are in the direct
37   possession not of the garnishee, but rather of the garnishee’s subsidiary.
38                               _________________________________
39
40                              MICHAEL S. KIM (Melanie L. Oxhorn, on the brief) Kobre & Kim LLP,
41                                   New York, NY, for Plaintiff-Appellant.
42
43                              SCOTT D. MUSOFF (Timothy G. Nelson, Gregory A. Litt, on the brief)
44                                    Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for
45                                    Garnishee-Appellee.

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1                                _________________________________
2    PER CURIAM:

 3          For the reasons set forth in the District Court’s well-reasoned and thorough opinion,

 4   Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of Commerce, No.

 5   11-mc-00099-LAK (S.D.N.Y. Apr. 12, 2012), ECF No. 97, resolution of this case turns upon

 6   unresolved issues of New York State law regarding the interpretation of N.Y. C.P.L.R.

 7   § 5225(b). We believe it is more appropriate for the New York Court of Appeals to address this

 8   matter because it is in a better position than this Court to determine how § 5225(b) should be

 9   interpreted in light of New York’s overall statutory scheme (including, but not limited to,

10   consideration of whether the identical language in § 5225(a) should be given the same meaning

11   as § 5225(b) and what the legislature intended when enacting § 5225(b)).

12          For the foregoing reasons and pursuant to New York Court of Appeals Rule 500.27 and

13   Local Rule 27.2 of this Court, we respectfully CERTIFY to the Court of Appeals the following

14   questions:

15      1. May a court issue a turnover order pursuant to N.Y. C.P.L.R. § 5225(b) to an entity that

16          does not have actual possession or custody of a debtor’s assets, but whose subsidiary

17          might have possession or custody of such assets?

18      2. If the answer to the above question is in the affirmative, what factual considerations

19          should a court take into account in determining whether the issuance of such an order is

20          permissible?

21          “As is our practice, we do not intend to limit the scope of the Court of Appeals’ analysis

22   through the formulation of our question, and we invite the Court of Appeals to expand upon or

23   alter [these] question[s] as it should deem appropriate.” Joseph v. Athanasopoulos, 648 F.3d 58,

24   68 (2d Cir. 2011).

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1            It is hereby ORDERED that the Clerk of this Court transmit to the Clerk of the New

2   York Court of Appeals a copy of this opinion as our certificate, together with a complete set of

3   the briefs, the appendix, and the record filed in this Court by the parties. The parties shall bear

4   equally all fees and costs that may be imposed by the New York Court of Appeals in connection

5   with this certification. This panel will resume its consideration of this appeal after the

6   disposition of this certification by the New York Court of Appeals. The stay imposed by the

7   District Court shall remain in effect at least until we dispose of the case upon its return to this

8   panel.




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