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. 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 for the Second Circuit, held at the

2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on

the 19th 3 day of April, two thousand twelve.

4 Present:

5 DEBRA ANN LIVINGSTON,

6 GERARD E. LYNCH,

7 CHRISTOPHER F. DRONEY,

8 Circuit Judges.

9 _____________________________________________

10 ALLSTATE INSURANCE COMPANY, ALLSTATE INDEMNITY COMPANY, ALLSTATE

11 PROPERTY & CASUALTY INSURANCE COMPANY, ALLSTATE NEW JERSEY

12 INSURANCE COMPANY, 

13 Plaintiffs-Appellants,

14 v. No. 11-0747-cv

15 DANIEL LEVY a/k/a DIMA, ALEX LEVY a/k/a SASHA, HOI YAT KAM, M.D., SALVATORE

16 LENTINI, D.C., YAN YAN YU a/k/a ANGELA, HAROUTYOUN TIKRANIAN, D.C., LAI FAIN

17 XUE, a/k/a LISA, CHENG HE SU, ALEKSANDRA GASHINSKAYA, M.D., BRONX

18 SHERIDAN MEDICAL, P.C., NEW LITE BRONX MEDICAL, P.C., COMFORT

19 CHIROPRACTIC, P.C., ALIGN CHIROPRACTIC CARE, P.C., QI BAO ACUPUNCTURE, P.C.,

20 DESMOND CONNELL, ESQ., MARY JIMENEZ, LLOYD MODESTO, RONALD SCHWARTZ,

21 DAN MADRID, BEST STAR ADVERTISEMENT CORPORATION, PRO-TWO 
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1 MANAGEMENT CORPORATION, UNITED MEDICAL BILLING & COLLECTION

2 CORPORATION,

3 Defendants-Appellees.

4 _____________________________________________

5 For Plaintiffs-Appellants: NATHAN A. TILDEN (Richard D. King, Jr., on the brief), Smith

6 & Brink, P.C., Garden City, N.Y.

7 For Defendant-Appellee 

8 Mary Jimenez: DENIS PATRICK KELLEHER, New York, N.Y.

9 For Defendant-Appellee 

10 Hoi Yat Kam, M.D.: ALBERT Y. DAYAN, Kew Gardens, N.Y.

11 For Defendants-Appellees 

12 Salvatore Lentini and Align

13 Chiropractic Care, P.C.: ROBERT KOPPELMAN, New York, N.Y.

14 For Defendants-Appellees 

15 Daniel Levy a/k/a Dima, 

16 Alex Levy a/k/a Sasha, 

17 Yan Yan Yu a/k/a Angela, 

18 Haroutyoun Tikranian, 

19 D.C.,Lai Fan Xue a/k/a Lisa, 

20 Chen He Su, Aleksandra 

21 Gashinskaya, M.D.,Bronx 

22 Sheridan Medical, P.C., New

23 Lite Bronx Medical, P.C., 

24 Comfort Chiropractic, P.C., Qi 

25 Bao Acupuncture, P.C., Tai Ji

26 Acupuncture, P.C., Desmond

27 Connell, Esq., Lloyd Modesto, 

28 Ronald Schwartz, Dan Madrid,

29 Best Star Advertisement Corp.,

30 Pro-Two Management Corp.,

31 United Medical Billing Corp.: No appearance. 

32

33 Appeal from an order of the United States District Court for the Eastern District of New

34 York (Block, J.) denying Plaintiffs-Appellants’ motion for prejudgment attachment.
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Section 6201(3) provides that an order of attachment 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, encumbered 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).

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1 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

2 that the Plaintiffs-Appellants’ appeal is DISMISSED for lack of appellate subject-matter

3 jurisdiction.

4 Plaintiffs-Appellants Allstate Insurance Company, Allstate Indemnity Company, Allstate

5 Property & Casualty Company, and Allstate New Jersey Insurance Company (collectively,

6 “Allstate”) appeal from a January 31, 2011 Memorandum and Order of the United States District

7 Court for the Eastern District of New York (Block, J.) adopting a December 29, 2010 Report and

8 Recommendation of the United States Magistrate Judge for the Eastern District of New York

9 (Pohorelsky, J.) and denying Allstate’s motion for prejudgment attachment for Allstate’s failure to

10 demonstrate that the Defendants-Appellees secreted property “with intent to defraud [their] creditors

11 or frustrate the enforcement of a judgment that might be rendered in [Allstate’s] favor.” N.Y.

C.P.L.R. § 6201(3).1 12 Allstate argues that we have jurisdiction over this appeal pursuant to the

13 collateral order doctrine, which holds that 28 U.S.C. § 1291 “permits the interlocutory appeal of

14 decisions falling ‘in that small class which finally determine claims of rights separable from, and

15 collateral to, rights asserted in the action, too important to be denied review and too independent of

16 the cause itself to require that appellate consideration be deferred until the whole case is

17 adjudicated.’” Dayco Corp. v. Foreign Transactions Corp., 705 F.2d 38, 39 (2d Cir. 1983) (quoting

18 Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). We assume the parties’

19 familiarity with the underlying facts, procedural history of the case, and issues on appeal. 
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1 To be among that “small class” of interlocutory rulings appealable under the Cohen doctrine,

2 an order must (i) “conclusively determine the disputed question”; (ii) “resolve an important issue

3 completely separate from the merits of the action”; and (iii) “be effectively unreviewable on appeal

4 from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (internal

5 quotation marks omitted). We have added a fourth requirement to the collateral order doctrine: the

6 district court’s ruling must “present serious and unsettled questions of law.” Banque Nordeurope

7 S.A. v. Banker, 970 F.2d 1129, 1131 (2d Cir. 1992) (per curiam). We have recognized that orders

8 denying a motion for attachment are “paradigms of final collateral orders that are unreviewable on

9 appeal from a final judgment” and thus often fall within the scope of the collateral order doctrine.

10 See Result Shipping Co. v. Ferruzzi Trading USA Inc., 56 F.3d 394, 398 (2d Cir. 1995). Pursuant

11 to Banque Nordeurope S.A., however, the interlocutory appeal of such orders is warranted only

12 when they “present[] an important question of law whose resolution will guide courts in other

13 cases.” 970 F.2d at 1130-31 (holding that appeal involving mere “application of well-settled

14 principles of law to particular facts” should not be heard before final judgment); see also Kensington

15 Int’l Ltd. v. Republic of Congo, 461 F.3d 238, 241 (2d Cir. 2006) (“[E]ven if an order . . . satisfies

16 Cohen, courts have leeway to determine whether the issue on appeal is an important issue of law,

17 the resolution of which may have relevance for future cases.”); Result Shipping, 56 F.3d at 398-99

18 (exercising jurisdiction over appeal from denial of security where Cohen requirements were met,

19 appeal concerned “relatively unexplored region of the law,” and “resolution of the[] issues

20 [presented would] provide necessary guidance to trial courts”). 

21 Allstate’s appeal presents no serious or unsettled questions of law. Allstate argues

22 principally that the District Court erred in concluding that § 6201(3) “can only be satisfied when the
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1 defendants’ asset transfers were performed after the initiation of litigation, or following the

2 commencement of an investigation and/or criminal action,” and thus failed to assess whether asset

3 transfers by the Defendants-Appellees which predated the initiation of suit were sufficient to

4 establish a basis for attachment pursuant to § 6201(3). Contrary to Allstate’s claim, however, it is

5 well-established under New York law that in determining whether a defendant has disposed of

6 property with intent to defraud its creditors for the purpose of applying § 6201(3), courts may

7 consider evidence of the defendant’s fraudulent conduct predating the initiation of suit by the

8 plaintiff. See N.Y. Dist. Council of Carpenters Pension Fund v. KW Constr., Inc., 2008 WL

9 2115225, No. 07 Civ. 8008 (RJS), at *6 (S.D.N.Y. May 16, 2008) (observing that “the

10 overwhelming weight of authority in New York State courts and courts in [the Southern District of

11 New York] favors the view that § 6201(3) may be satisfied where the plaintiff merely demonstrates

12 past fraudulent transfers by the defendant”); see also Mineola Ford Sales Ltd. v. Rapp, 661 N.Y.S.2d

13 281 (App. Div. 1997) (in the context of motion for a prejudgment attachment, finding defendant

14 acted with intent to defraud the creditor-plaintiff based on lengthy history of conduct predating

15 litigation, including the falsification of business records and the diversion of funds). Moreover, the

16 District Court here, in adopting the Report and Recommendation, specifically noted that Allstate

17 correctly stated the law in contending that a defendant’s conduct prior to litigation and before

18 investigation may demonstrate such a disposal of property for the purpose of § 6201(3). 

19 Allstate further argues that the District Court erred in concluding that “the defendants’

20 transfer of No-Fault payments -- payments that were obtained in violation of New York law, and

21 then transferred to the unlicensed laypersons in a manner that represented a violation of federal law

22 -- did not constitute evidence of defendants’ secretion of property with the intent to defraud
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1 creditors.” This argument, however, amounts to the claim that the District Court erred in applying

2 the requirements of § 6201(3) to the facts of this case. We conclude that this argument does not

3 present a question of law warranting review under the collateral order doctrine. This appeal

4 therefore does not satisfy the requirement of the collateral order doctrine that it present “an

5 important question of law whose resolution will guide courts in other cases,” Banque Nordeurope

6 S.A., 970 F.2d at 1131. 

7 We have considered Allstate’s remaining arguments and determined them to be without

8 merit. Having concluded that the appeal does not meet the requirements for application of the

9 collateral order doctrine, we lack appellate jurisdiction to hear this appeal. Accordingly, we hereby

10 DISMISS Allstate’s appeal for lack of appellate subject-matter jurisdiction.

11 FOR THE COURT:

12 Catherine O’Hagan Wolfe, Clerk

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