12

‐ 3938

‐ cv

Pensionsversicherungsanstalt v. Phillip L. Greenblatt et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER

FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE

P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 25 th day of February, two thousand and

fourteen.

PRESENT: RICHARD C. WESLEY,

PETER W. HALL,

DENNY CHIN,

Circuit Judges

.

P ENSIONSVERSICHERUNGSANSTALT

,

Plaintiff

‐ Counter

‐ Defendant

‐ Appellee

,

‐ v.

‐ 12

‐ 3938

‐ cv

P HILLIP L. G REENBLATT

,

Defendant

‐ Cross

‐ Claimant

‐ Cross

‐ Defendant

‐ Appellant

,S ONJA R OSENBAUM

, INDIVIDUALLY AND AS DISTRIBUTEE OF THE E STATE OF A LPHONS

R OSENBAUM

,

Defendant

‐ Counter

‐ Claimant

‐ Cross

‐ Defendant,

E STATE OF R OSE E ISINGER

, G LADYS R OBINSON

,

Defendants

.

FOR APPELLANT: Thomas A. Cullen, Burke, Scolamiero, Mortati & Hurd,

LLP, Albany, NY.

FOR APPELLEE: Stephen M. Hanrik, Hanrik Law Firm, New York, NY.

Appeal from the United States District Court for the Eastern District of

New York (Frederick Block, Senior District Judge; Tucker L. Melançon, District

Judge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the United States District

Court for the Eastern District of New York is AFFIRMED

.

On February 20, 2013, the United States District Court for the Eastern

District of New York (Melançon, J .) entered an amended judgment in favor of

appellee Pensionsversicherungsanstalt (“Pva”) against appellant Phillip L.

Greenblatt (“Greenblatt”) and co

‐ defendant Sonja Rosenbaum. Greenblatt’s

present appeal challenges a February 5, 2010 denial of Greenblatt’s Fed. R. Civ. P.

256 motion for summary judgment and an August 23, 2011 denial of Greenblatt’s

Fed. R. Civ. P. 12(c) motion to dismiss on the pleadings. We assume the parties’

familiarity with the underlying facts, procedural history, and issues for review.

After trial, appellants ordinarily may not challenge the denial of a

summary judgment motion premised on a finding that genuine issues of material

fact exist. See, e.g.

, Ortiz v. Jordan

, 131 S. Ct. 884, 889 (2011); Pahuta v. Massey

‐

Ferguson

, Inc.

, 170 F.3d 125, 130 (2d Cir. 1999). Here, although Greenblatt alleges

that the district court failed to follow Rule 56.1(d), conceivably a legal claim, the

argument effectively reduces to a sufficiency challenge based on the claim that

Pva failed to submit admissible evidence sufficient to create a genuine issue of

material fact. Because the issues raised in the motion for summary judgment

were fully tried before a jury, we will not review the district court’s decision to

deny Greenblatt’s motion for summary judgment.

In any event, Greenblatt’s argument in this regard is without merit. Local

Rule 56.1(d) mandates that “each statement

. . . must be followed by citation to

evidence which would be admissible,” a standard that Pva failed to meet in

multiple instances. However, nothing requires a district court to deem evidence

admitted, or grant summary judgment, simply because a non

‐ movant fails to

3comply with local rules such as Local Rule 56.1. See Holtz v. Rockefeller & Co., Inc.

,

258 F.3d 62, 73 (2d Cir. 2001) (“A district court has broad discretion to determine

whether to overlook a party’s failure to comply with local court rules.”). The

district court therefore did not abuse its discretion in denying Greenblatt’s

motion for summary judgment.

Greenblatt also argues that the district court erred in denying his motion

for judgment on the pleadings. Specifically, Greenblatt alleges that the court

lacked subject matter jurisdiction because Pva failed to satisfy the $75,000 amount

in controversy requirement under 28 U.S.C. § 1332(a).

To determine whether the amount in controversy requirement is met, “we

measure the amount in controversy as of the date of the complaint.” Scherer v.

Equitable Life Assurance Soc ʹ y of U.S.

, 347 F.3d 394, 397 (2d Cir. 2003); see also

Wolde

‐ Meskel v. Vocational Instruction Project Cmty. Servs., Inc.

, 166 F.3d 59, 62 (2d

Cir. 1999) (“Satisfaction of the § 1332(a) diversity requirements (amount in

controversy and citizenship) is determined as of the date that suit is filed

– the

‘time

‐ of

‐ filing’ rule.”). And because subject matter jurisdiction cannot be ousted

once it has attached, “affirmative defenses asserted on the merits may not be

used to whittle down the amount in controversy.” Scherer

, 347 F.3d at 397

4(internal quotation marks and citation omitted); see also Wolde

‐ Meskel

, 166 F.3d at

62 (“Events occurring subsequent to the institution of suit which reduce the

amount recoverable below the statutory limit do not oust jurisdiction.”) (internal

quotation marks and citation omitted).

The Complaint sought “not less than EUR 109,247.13” from Greenblatt and

Robinson “jointly and severally.” Although Pva “titled its claim against

Greenblatt in the Complaint as ‘conspiracy to commit fraud,’” the district court

properly determined that “the claim was essentially a claim for fraud.”

Pensionsversicherungsanstalt v. Estate of Rose Eisinger

, 07

‐ 5300 TLM, 2011 WL

3794064, at *3 (E.D.N.Y. Aug. 23, 2011). Interpreted as an adequately pled claim

for fraud, the amount in controversy as to Greenblatt was met; because the

Complaint did not specify the damages that arose between August 1999 and

February 2005

– the period of Greenblatt’s liability

– the maximum award against

Greenblatt was uncertain. Cf. Tongkook Am., Inc. v. Shipton Sportswear Co.

, 14 F.3d

781, 785 (2d Cir. 1994) (“Where the damages sought are uncertain, the doubt

should be resolved in favor of the plaintiff ʹ s pleadings.”).

5And even were the damages attributable to Greenblatt less than $75,000 to

a legal certainty, which the Second Amended Complaint may suggest, 1 the

district court properly determined that the amount in controversy was satisfied

given the Complaint’s request for punitive damages. Under New York law,

punitive damages are recoverable when a plaintiff establishes that the

“defendant’s wrongdoing is not simply intentional but evinces a high degree of

moral turpitude.” Ross v. Louise Wise Servs., Inc

., 8 N.Y.3d 478, 489 (2007)

(internal quotation marks and alteration omitted). Because a punitive award

could have increased damages beyond the $75,000 threshold, the court properly

denied Greenblatt’s 12(c) motion. See Bell v. Preferred Life Assur. Soc. of

Montgomery, Ala.

, 320 U.S. 238, 240 (1943); Tongkook

, 14 F.3d at 785.

1 The Second Amended Complaint sought €42,955 from Greenblatt. On

December 18, 2007, the date Pva filed the Complaint, €42,955 converted to roughly

$61,850.00, an amount clearly less than the $75,000 threshold.

6We have considered Greenblatt’s remaining arguments and find them to

be without merit. For the reasons stated above, the judgment and prior rulings of

the District Court are affirmed

.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

7