         11-3773 (L)
         Gasser v. Amboy Nat’l Bank

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 3rd day of January, two thousand thirteen.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                PETER W. HALL,
 8                GERARD E. LYNCH,
 9                         Circuit Judges.
10
11       GEORGE GASSER, GASSER CHAIR COMPANY, INCORPORATED,
12
13                                     Plaintiffs-Cross-Defendants-Appellees,
14
15                      v.                                                  11-3773 (Lead)
16                                                                          11-3777 (Con)
17
18       AMBOY NATIONAL BANK,
19
20                                     Defendant-Counter-Claimant-Appellant,
21
22       GEORGE E. SCHARPF,
23
24                                     Interested-Party-Appellant,
25
26       INFANTI INTERNATIONAL, INCORPORATED, MARK INFANTI, NANCY
27       APONTE INFANTI, VITTORIA INFANTI, MARGUERITA INFANTI,
28       MARIELLA INFANTI, SANDERS W. GROPPER,
29
30                                     Defendants.*
31
32

                *
                The Clerk of Court is respectfully directed to amend the
         official caption in this case to conform with the caption above.
 1   FOR APPELLANT AMBOY NAT’L BANK: DENNIS T. KEARNEY (Denise
 2                                   R. Rosenhaft, on the
 3                                   brief), Day Pitney LLP,
 4                                   Parsippany, NJ.
 5
 6   FOR APPELLANT GEORGE SCHARPF:       EUGENE KILLIAN, JR.,
 7                                       Killian & Salisbury, P.C.,
 8                                       Iselin, NJ.
 9
10   FOR APPELLEES:                      ALEX SPIZZ (Jill Makower,
11                                       on the brief), Todtman,
12                                       Nachamie, Spizz & Johns,
13                                       P.C., New York, NY.
14
15        Appeal from the United States District Court for the
16   Eastern District of New York (Glasser, J.).
17
18       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

19   AND DECREED that the judgment of the United States District

20   Court for the Eastern District of New York is AFFIRMED.

21       Appellants Amboy National Bank (“Amboy”) and George E.

22   Scharpf appeal separately from a June 7, 2011 judgment and

23   related orders of the United States District Court for the

24   Eastern District of New York (Glasser, J.), holding

25   Appellants in contempt for intentionally obstructing the

26   district court’s March 2, 2005 order (the “Auction Order”)

27   and awarding damages for that contempt.     In a June 2, 2008

28   Memorandum and Order (the “Contempt Order”), the district

29   court found that Scharpf intentionally interfered with the

30   Auction Order to publicly sell Infanti International, Inc.’s

31   assets because Scharpf orchestrated the removal of some of

                                     2
1    the assets before the auction.      Gasser v. Infanti Int’l,

2    Inc., No. 03-cv-6413 (ILG), 2008 WL 2323367, at *4-5, *10

3    (E.D.N.Y. June 2, 2008).     Amboy was held vicariously liable

4    because Scharpf, Amboy’s president, was acting as its agent.

5    Id. at *11-12.   In a June 3, 2011 Memorandum and Order (the

6    “Damages Order”), the district court awarded damages,

7    attorney’s fees, and costs against Appellants in the amount

8    of $1,256,523.85.   Gasser v. Infanti Int’l, Inc., No. 03-cv-

9    6413 (ILG), 2011 WL 2183549, at *26 (E.D.N.Y. June 3, 2011).

10   We assume the parties’ familiarity with the underlying

11   facts, the procedural history, and the issues presented for

12   review.1

13        Appellants contend that the district court abused its

14   discretion in holding them in contempt because the Auction

15   Order was ambiguous and the proof of Appellants’ non-

16   compliance with that order was not clear and convincing.

17   See, e.g., Perez v. Danbury Hosp., 347 F.3d 419, 423-24 (2d

18   Cir. 2003).   We disagree.

19        The Auction Order was clear and unambiguous, providing

20   that “Amboy shall not interfere with the Receiver's access


          1
            In an accompanying procedural order, we address
     Appellants’ motion to supplement the record and Appellees’ cross-
     motion to strike portions of Appellants’ briefs and for
     sanctions.

                                     3
1    to the premises” and that “[p]ending the [sale of the

2    assets], Amboy shall be deemed a bailee of the Assets

3    charged with all the obligations of that status.”     Gasser v.

4    Infanti Int’l, Inc., 358 F. Supp. 2d 176, 179 (E.D.N.Y.

5    2005).     While Amboy contends that the Auction Order did not

6    “articulate what Amboy was supposed to do,” it can hardly be

7    clearer that, as a bailee, Amboy knew that it could not

8    sabotage the auction by removing assets from the premises.

9    See People v. Wilson, 93 N.Y.2d 222 (1999).

10       The record contains clear and convincing proof of

11   Appellants’ noncompliance with the court’s order.     Numerous

12   witnesses testified that assets were removed prior to the

13   auction or that the assets identified during Gasser’s post-

14   auction inspection were not on premises prior to the

15   auction.     There was also substantial evidence and testimony

16   connecting Scharpf to the removal of the assets.

17       Given Scharpf’s clear involvement in the scheme, the

18   district court properly held Amboy vicariously liable for

19   his malfeasance.     Scharpf testified that Amboy explicitly

20   directed him, as Amboy’s employee and officer, to act as

21   bailee of Infanti International’s assets.     See, e.g., United

22   States v. Twentieth Century Fox Film Corp., 882 F.2d 656,

23   661 n.1 (2d Cir. 1989).     Moreover, this is not a situation

                                     4
1    where Scharpf “totally abandoned his principal’s interests

2    and [acted] entirely for his own or another’s purposes.”

3    Center v. Hampton Affiliates, Inc., 66 N.Y.2d 782, 784-85

4    (1985).   Scharpf repeatedly testified that he was attempting

5    to recover on the loans made by the bank and himself to

6    Vittorio Infanti and Infanti International.

7        Despite the overwhelming evidence of Scharpf’s

8    malfeasance, Appellants also contend that the outcome of the

9    case would have been different had the district court

10   permitted “full” cross-examination of Vittorio Infanti

11   concerning the alleged “deal” between Vittorio Infanti and

12   Mark Gasser.   See, e.g., Ricketts v. City of Hartford, 74

13   F.3d 1397, 1412 (2d Cir. 1996).   But Appellants fail to

14   explain why this is so.   This was a bench trial, and the

15   district court was well aware of the alleged deal.

16   Moreover, the district court provided Appellants ample

17   opportunity to cross-examine Vittorio Infanti on a variety

18   of topics and noted that they were successful in attacking

19   his credibility.

20       Appellants next contend that the district court abused

21   its discretion in the Damages Order by relying on Gasser’s

22   valuation testimony without properly qualifying him as an

23   expert.   But despite qualifying Gasser as an expert during

                                   5
1    the evidentiary proceeding, the district court considered

2    Gasser’s estimates of the value of the equipment as fact

3    testimony.    In the Damages Order, the district court noted

4    that it considered Gasser an expert during the evidentiary

5    hearing because of his “lifelong experience in every stage

6    and facet of the manufacture of chairs.”    2011 WL 2183549,

7    at *9.    It went on to note, however, that a “critical

8    reading of his testimony . . . lead[s] to the conclusion

9    that [his estimates were] based entirely on his intimate

10   knowledge of the subject and [were] fact rather than opinion

11   based.”    Id. at *10.

12       We need not decide whether Gasser’s valuation testimony

13   was properly admitted as fact testimony because Appellants

14   waived their challenge to the valuation of the assets.

15   Appellants never objected to Gasser’s valuation testimony or

16   suggested that the evidence was unreliable.     See, e.g.,

17   United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir.

18   1995).    Indeed, the only evidence in the record concerning

19   the value of the assets came from Gasser.     Appellants

20   offered no evidence whatsoever on this point.

21       Finally, Appellants contend that compensatory damages

22   should not have been awarded to Appellees because the only

23   entity that suffered damages as a result of the removal of

                                    6
1    the assets prior to the auction was the estate of Infanti

2    International.   We disagree that Appellees were not harmed

3    as a result of Appellants’ actions.     Appellees hold a claim

4    to the assets of Infanti International and thus, any

5    reduction in the value of the auctioned assets harmed their

6    ability to recover on that claim.     Arguably, the Damages

7    Order should have awarded damages to the Receiver as

8    representative of the Infanti estate.     As counsel for

9    Appellants conceded at oral argument, any error was harmless

10   because Appellees’ claim had first priority and far exceeds

11   the damages awarded in this case.

12       We have considered Appellants’ remaining arguments and,

13   after a thorough review of the record, find them to be

14   without merit.

15       For the foregoing reasons, the judgment of the district

16   court is AFFIRMED.

17                               FOR THE COURT:
18                               Catherine O’Hagan Wolfe, Clerk
19

20




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