10-1096-cv
Bernheim v. Elia


                             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 THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
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.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 18th day of February, two thousand eleven,

Present:    ROSEMARY S. POOLER,
            PETER W. HALL,
                        Circuit Judges.
            JOSEPH F. BIANCO,*
                        District Judge.
_____________________________________________________

L. ANDREW BERNHEIM,

                               Plaintiff-Counter-Defendant-Appellant,

                        v.                                                 10-1096-cv

DAVID ELIA, DANIEL ELIA, THE ALFRED ELIA TRUST,
THE ESTATE OF JOSEPHINE ELIA, BERNADETTE ELIA,
TINA ELIA, THE ESTATE OF ALFRED ELIA,

                               Defendants-Counter-Claimants-Appellees,

JOHN and JANE DOES 1-50, JOHN and JANE DOES 51-100,

                               Defendants.




         *
        The Honorable Joseph F. Bianco, United States District Court for the Eastern District
of New York, sitting by designation.
Appearing for Appellant:      Brian M. Melber, Personius Melber LLP, Buffalo, N.Y. (Philip L.
                              Guarino, Law Office of Philip L. Guarino, Caldwell, N.J., on the
                              brief).

Appearing for Appellees:      David Elia, Buffalo, N.Y. ( David Smith, Smith, Feuerstein &
                              Smith LLP, Buffalo, N.Y., on the brief)

       Appeal from the United States District Court for the Western District of New York
(Arcara, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        L. Andrew Bernheim appeals from the February 25, 2010 decision and order of the
United States District Court for the Western District of New York (Arcara, J.) dismissing his
complaint. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

         Bernheim filed this action on February 23, 2005 against defendants David Elia, Daniel
Elia, the Estate of Alfred Elia, the Alfred Elia Trust, the Estate of Josephine Elia, Bernadette
Elia, Tina Elia, and John Does 1 through 100 (the “Elia defendants”). In his complaint, Bernheim
alleges that he is either part or sole owner of D.A. Elia Construction Corp. (“Elia Construction”)
and seeks a declaratory judgment to that effect. He also alleges that the Elia defendants
wrongfully deprived him of ownership profits and benefits.

        After setting out the long and convoluted history of the numerous proceedings involving
the parties, the district court declined to adopt Magistrate Kenneth Schroeder’s report and
recommendation that recommended denying defendants’ motion to dismiss the complaint and
granting Bernheim partial summary judgment on the issue of ownership. The district court
granted defendants’ motion to dismiss. We affirm for the reasons set forth in the district court’s
decision and opinion of February 25, 2010.

       Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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