1 11-0747-cv Allstate Insurance Co. et al. v. Daniel Levy et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

### SUMMARY ORDER Rulings by summary order do not have precedential effect. Ci tation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Pr ocedure 32.1 and this court’s Lo cal Rule 32.1.1. When citing a summary order in a document filed with this court, a pa rty must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citinga 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 1 Daniel Patrick Moynihan United St ates Courthouse, 500 Pearl Street , in the City of New York, on 2 the 19 thday of April, two thousand twelve. 3
Present: 4 DEBRA ANN LIVINGSTON, 5 GERARD E. LYNCH, 6 CHRISTOPHER F. DRONEY, 7 Circuit Judges

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_____________________________________________ 9 ALLSTATE INSURANCE COMPANY, ALLSTATE INDEMNITY COMPANY, ALLSTATE 10 PROPERTY & CASUALTY INSURANCE COMPANY, ALLSTATE NEW JERSEY 11 INSURANCE COMPANY, 12 Plaintiffs-Appellant s, 13 v. No. 11-0747-cv 14 DANIEL LEVY a/k/a DIMA, ALEX LEVY a/k/a SASHA, HOI YAT KAM, M.D., SALVATORE 15 LENTINI, D.C., YAN YAN YU a/k/a ANGELA, HAROUTYOUN TIKRANIAN, D.C., LAI FAIN 16 XUE, a/k/a LISA, CHENG HE SU, ALEKSANDRA GASHINSKAYA, M.D., BRONX 17 SHERIDAN MEDICAL, P.C., NEW LITE BRONX MEDICAL, P.C., COMFORT 18 CHIROPRACTIC, P.C., ALIGN CHIROPRACTIC CARE, P.C., QI BAO ACUPUNCTURE, P.C., 19 DESMOND CONNELL, ESQ., MARY JIMENEZ, LLOYD MODESTO, RONALD SCHWARTZ, 20 DAN MADRID, BEST STAR ADVERTISEMENT CORPORATION, PRO-TWO 212 MANAGEMENT CORPORATION, UNITED MEDICAL BILLING & COLLECTION 1 CORPORATION, 2 Defendants-Appellees

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_____________________________________________ 4 For Plaintiffs-Appellants: NATHAN A. TILDEN (Richard D. King, Jr., on the brief ), Smith 5 & Brink, P.C., Garden City, N.Y. 6 For Defendant-Appellee 7 Mary Jimenez: DENIS PATRICK KELLEHER, New York, N.Y. 8 For Defendant-Appellee 9 Hoi Yat Kam, M.D.: ALBERT Y. DAYAN, Kew Gardens, N.Y. 10 For Defendants-Appellees 11 Salvatore Lentini and Align 12 Chiropractic Care, P.C.: ROBERT KOPPELMAN, New York, N.Y. 13 For Defendants-Appellees 14 Daniel Levy a/k/a Dima, 15 Alex Levy a/k/a Sasha, 16 Yan Yan Yu a/k/a Angela, 17 Haroutyoun Tikranian, 18 D.C.,Lai Fan Xue a/k/a Lisa, 19 Chen He Su, Aleksandra 20 Gashinskaya, M.D.,Bronx 21 Sheridan Medical, P.C., New 22 Lite Bronx Medical, P.C., 23 Comfort Chiropractic, P.C., Qi 24 Bao Acupuncture, P.C., Tai Ji 25 Acupuncture, P.C., Desmond 26 Connell, Esq., Lloyd Modesto, 27 Ronald Schwartz, Dan Madrid, 28 Best Star Advertisement Corp., 29 Pro-Two Management Corp., 30 United Medical Billing Corp.: No appearance. 31 32 Appeal from an order of the United States Di strict Court for the Eastern District of New 33 York (Block, J. ) denying Plaintiffs-Appellants’ motion for prejudgment attachment. 341 Section 6201(3) provides that an order of att achment may be granted where “the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff’s favor, has assigned, disposed of, en cumbered or secreted property, or removed it from the state or is about to do any of these acts.” N.Y. C.P.L.R. § 6201(3). 3 UPON DUE CONSIDERATION , it is hereby ORDERED, ADJUDGED , and DECREED 1 that the Plaintiffs-Appellants’ appeal is DISMISSED for lack of appellate subject-matter 2 jurisdiction. 3 Plaintiffs-Appellants Allstate Insurance Company, Allstate Indemnity Company, Allstate 4 Property & Casualty Company, and Allstate New Jersey Insurance Company (collectively, 5 “Allstate”) appeal from a January 31, 2011 Memorandum and Order of the United States District 6 Court for the Eastern Distri ct of New York (Block, J. ) adopting a December 29, 2010 Report and 7 Recommendation of the United States Magistrate Judge for the Eastern District of New York 8 (Pohorelsky, J.) and denying Allstate’s motion for prejudgment attachment for Allstate’s failure to 9 demonstrate that the Defendants-Appellees secreted property “with intent to defraud [their] creditors 10 or frustrate the enforcement of a judgment that might be rendered in [Allstate’s] favor.” N.Y. 11 C.P.L.R. § 6201(3). 1 Allstate argues that we have jurisdiction over this appeal pursuant to the 12 collateral order doctrine, which holds that 28 U.S.C. § 1291 “permits the interlocutory appeal of 13 decisions falling ‘in that small class which finally determine claims of rights separable from, and 14 collateral to, rights asserted in the action, too important to be denied review and too independent of 15 the cause itself to require that appellate consideration be deferred until the whole case is 16 adjudicated.’” Dayco Corp. v. Foreign Transactions Corp. , 705 F.2d 38, 39 (2d Cir. 1983) (quoting 17 Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546 (1949)). We assume the parties’ 18 familiarity with the underlying facts, proceduralhistory of the case, and issues on appeal. 194 To be among that “small class” of interlocutory rulings appealable under the Cohendoctrine, 1 an order must (i) “conclusively determine the disputed question”; (ii) “resolve an important issue 2 completely separate from the merits of the acti on”; and (iii) “be effectively unreviewable on appeal 3 from a final judgment.” Coopers & Lybrand v. Livesay , 437 U.S. 463, 468 (1978) (internal 4 quotation marks omitted). We have added a fourth re quirement to the collateral order doctrine: the 5 district court’s ruling must “present serious and unsettled questions of law.” Banque Nordeurope 6 S.A. v. Banker , 970 F.2d 1129, 1131 (2d Cir. 1992) (per curiam ). We have recognized that orders 7 denying a motion for attachment are “paradigms of final collateral orders that are unreviewable on 8 appeal from a final judgment” and thus often fall within the scope of the collateral order doctrine. 9 See Result Shipping Co. v. Ferruzzi Trading USA Inc. , 56 F.3d 394, 398 (2d Cir. 1995). Pursuant 10

to Banque Nordeurope S.A. , however, the interlocutory appeal of such orders is warranted only 11 when they “present[] an important question of law whose resolution will guide courts in other 12 cases.” 970 F.2d at 1130-31 (holding that appealinvolving mere “application of well-settled 13 principles of law to particular facts” should not be heard before final judgment); see also Kensington 14 Int’l Ltd. v. Republic of Congo , 461 F.3d 238, 241 (2d Cir. 2006) (“[E]v en if an order . . . satisfies 15 Cohen , courts have leeway to determine whether the issue on appeal is an important issue of law, 16 the resolution of which may have relevance for future cases.”); Result Shipping , 56 F.3d at 398-99 17 (exercising jurisdiction over appeal from denial of security where Cohenrequirements were met, 18 appeal concerned “relatively unexplored region of the law,” and “resolution of the[] issues 19 [presented would] provide necessary guidance to trial courts”). 20 Allstate’s appeal presents no serious or uns ettled questions of law. Allstate argues 21 principally that the District Court erred in conc luding that § 6201(3) “can only be satisfied when the 225 defendants’ asset transfers were performed af ter the initiation of litigation, or following the 1 commencement of an investigation and/or criminalaction,” and thus failed to assess whether asset 2 transfers by the Defendants-Appellees which pred ated the initiation of suit were sufficient to 3 establish a basis for attachment pursuant to § 6201(3) . Contrary to Allstate’s claim, however, it is 4 well-established under New York law that in determining whether a defendant has disposed of 5 property with intent to defraud its creditors for the purpose of applying § 6201(3), courts may 6 consider evidence of the defendant’s fraudulent conduct predating the initiation of suit by the 7 plaintiff. See N.Y. Dist. Council of Carpenters Pension Fund v. KW Constr., Inc. , 2008 WL 8 2115225, No. 07 Civ. 8008 (RJS), at *6 (S.D.N.Y. May 16, 2008) (observing that “the 9 overwhelming weight of authority inNew York State courts and courts in [the Southern District of 10 New York] favors the view that § 6201(3) may be satisfied where the plaintiff merely demonstrates 11 past fraudulent transfers by the defendant”); see also Mineola Ford Sales Ltd. v. Rapp , 661 N.Y.S.2d 12 281 (App. Div. 1997) (in the context of motion for a prejudgment attachment, finding defendant 13 acted with intent to defraud the creditor-plaintiff based on lengthy history of conduct predating 14 litigation, including the falsification of business reco rds and the diversion of funds). Moreover, the 15 District Court here, in adopting the Report and Recommendation, specifically noted that Allstate 16 correctlystated the law in contending that a defendant’s conduct prior to litigation and before 17 investigation may demonstrate such a disposal of property for the purpose of § 6201(3). 18 Allstate further argues that the District Court erred in concluding that “the defendants’ 19 transfer of No-Fault payments -- payments that were obtained in violation of New York law, and 20 then transferred to the unlicensed laypersons in a manner that represented a violation of federal law 21 -- did not constitute evidence of defendants’ secretion of property with the intent to defraud 226 creditors.” This argument, however, amounts to the claim that the District Court erred in applying 1 the requirements of § 6201(3) to the facts of this case. We conclude that this argument does not 2 present a question of law warranting review under the collateral order doctrine. This appeal 3 therefore does not satisfy the requirement of the collateral order doctrine that it present “an 4 important question of law whose resoluti on will guide courts in other cases,” Banque Nordeurope 5 S.A. , 970 F.2d at 1131. 6 We have considered Allstate’s remaining arguments and determined them to be without 7 merit. Having concluded that the appeal does not meet the requirements for application of the 8 collateral order doctrine, we lack appellate jurisdic tion to hear this appeal. Accordingly, we hereby 9 DISMISS Allstate’s appeal for lack of appellate subject-matter jurisdiction. 10

FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13