*The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above. 11-3773 (L) Gasser v. Amboy Nat’l Bank **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 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 3 rdday of January, two thousand thirteen. 4 5 PRESENT: RICHARD C. WESLEY, 6 PETER W. HALL, 7 GERARD E. LYNCH, 8 Circuit Judges

. 9 10 GEORGE GASSER, GASSER CHAIR COMPANY, INCORPORATED, 11 12 Plaintiffs-Cross-Defendants-Appellees , 13 14 v. 11-3773 (Lead) 15 11-3777 (Con) 16 17 AMBOY NATIONAL BANK, 18 19 Defendant-Counter-Claimant-Appellant , 20 21 GEORGE E. SCHARPF, 22 23 Interested-Party-Appellant , 24 25 INFANTI INTERNATIONAL, INCORPORATED, MARK INFANTI, NANCY 26 APONTE INFANTI, VITTORIA INFANTI, MARGUERITA INFANTI, 27 MARIELLA INFANTI, SANDERS W. GROPPER, 28 29 Defendants

. * 30 31 322 FOR APPELLANT AMBOY NAT’L BANK: DENNIS T. KEARNEY (Denise 1 R. Rosenhaft, on the 2 brief ), Day Pitney LLP, 3 Parsippany, NJ. 4 5 FOR APPELLANT GEORGE SCHARPF: EUGENE KILLIAN, JR., 6 Killian & Salisbury, P.C., 7 Iselin, NJ. 8 9 FOR APPELLEES: ALEX SPIZZ (Jill Makower, 10 on the brief ), Todtman, 11 Nachamie, Spizz & Johns, 12 P.C., New York, NY. 13 14 Appeal from the United States District Court for the 15 Eastern District of New York (Glasser, J. ). 16 17 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 18

**AND DECREED**that the judgment of the United States District 19 Court for the Eastern District of New York is **AFFIRMED**

. 20 Appellants Amboy National Bank (“Amboy”) and George E. 21 Scharpf appeal separately from a June 7, 2011 judgment and 22 related orders of the United States District Court for the 23 Eastern District of New York (Glasser, J .), holding 24 Appellants in contempt for intentionally obstructing the 25 district court’s March 2, 2005 order (the “Auction Order”) 26 and awarding damages for that contempt. In a June 2, 2008 27 Memorandum and Order (the “Contempt Order”), the district 28 court found that Scharpf intentionally interfered with the 29 Auction Order to publicly sell Infanti International, Inc.’s 30 assets because Scharpf orchestrated the removal of some of 311In an accompanying procedural order, we addressAppellants’ motion to supplement the record and Appellees’ crossmotion to strike portions of Appellants’ briefs and for sanctions. 3 the assets before the auction. Gasser v. Infanti Int’l, 1

Inc. , No. 03-cv-6413 (ILG), 2008 WL 2323367, at *4-5, *10 2 (E.D.N.Y. June 2, 2008). Amboy was held vicariously liable 3 because Scharpf, Amboy’s president, was acting as its agent. 4 Id. at *11-12. In a June 3, 2011 Memorandum and Order (the 5 “Damages Order”), the district court awarded damages, 6 attorney’s fees, and costs against Appellants in the amount 7 of $1,256,523.85. Gasser v. Infanti Int’l, Inc. , No. 03-cv8 6413 (ILG), 2011 WL 2183549, at *26 (E.D.N.Y. June 3, 2011). 9 We assume the parties’ familiarity with the underlying 10 facts, the procedural history, and the issues presented for 11 review. 1 12 Appellants contend that the district court abused its 13 discretion in holding them in contempt because the Auction 14 Order was ambiguous and the proof of Appellants’ non15 compliance with that order was not clear and convincing. 16 See, e.g. , Perez v. Danbury Hosp. , 347 F.3d 419, 423-24 (2d 17 Cir. 2003). We disagree. 18 The Auction Order was clear and unambiguous, providing 19 that “Amboy shall not interfere with the Receiver's access 204 to the premises” and that “[p]ending the [sale of the 1 assets], Amboy shall be deemed a bailee of the Assets 2 charged with all the obligations of that status.” Gasser v. 3 Infanti Int’l, Inc. , 358 F. Supp. 2d 176, 179 (E.D.N.Y. 4 2005). While Amboy contends that the Auction Order did not 5 “articulate what Amboy was supposed to do,” it can hardly be 6 clearer that, as a bailee, Amboy knew that it could not 7 sabotage the auction by removing assets from the premises. 8 See People v. Wilson , 93 N.Y.2d 222 (1999). 9 The record contains clear and convincing proof of 10 Appellants’ noncompliance with the court’s order. Numerous 11 witnesses testified that assets were removed prior to the 12 auction or that the assets identified during Gasser’s post13 auction inspection were not on premises prior to the 14 auction. There was also substantial evidence and testimony 15 connecting Scharpf to the removal of the assets. 16 Given Scharpf’s clear involvement in the scheme, the 17 district court properly held Amboy vicariously liable for 18 his malfeasance. Scharpf testified that Amboy explicitly 19 directed him, as Amboy’s employee and officer, to act as 20 bailee of Infanti International’s assets. See, e.g. , United 21 States v. Twentieth Century Fox Film Corp. , 882 F.2d 656, 22 661 n.1 (2d Cir. 1989). Moreover, this is not a situation 235 where Scharpf “totally abandoned his principal’s interests 1 and [acted] entirely for his own or another’s purposes.” 2 Center v. Hampton Affiliates, Inc. , 66 N.Y.2d 782, 784-85 3 (1985). Scharpf repeatedly testified that he was attempting 4 to recover on the loans made by the bank and himself to 5 Vittorio Infanti and Infanti International. 6 Despite the overwhelming evidence of Scharpf’s 7 malfeasance, Appellants also contend that the outcome of the 8 case would have been different had the district court 9 permitted “full” cross-examination of Vittorio Infanti 10 concerning the alleged “deal” between Vittorio Infanti and 11 Mark Gasser. See, e.g. , Ricketts v. City of Hartford , 74 12 F.3d 1397, 1412 (2d Cir. 1996). But Appellants fail to 13 explain why this is so. This was a bench trial, and the 14 district court was well aware of the alleged deal. 15 Moreover, the district court provided Appellants ample 16 opportunity to cross-examine Vittorio Infanti on a variety 17 of topics and noted that they were successful in attacking 18 his credibility. 19 Appellants next contend that the district court abused 20 its discretion in the Damages Order by relying on Gasser’s 21 valuation testimony without properly qualifying him as an 22 expert. But despite qualifying Gasser as an expert during 236 the evidentiary proceeding, the district court considered 1 Gasser’s estimates of the value of the equipment as fact 2 testimony. In the Damages Order, the district court noted 3 that it considered Gasser an expert during the evidentiary 4 hearing because of his “lifelong experience in every stage 5 and facet of the manufacture of chairs.” 2011 WL 2183549, 6 at *9. It went on to note, however, that a “critical 7 reading of his testimony . . . lead[s] to the conclusion 8 that [his estimates were] based entirely on his intimate 9 knowledge of the subject and [were] fact rather than opinion 10 based.” Id. at *10. 11 We need not decide whether Gasser’s valuation testimony 12 was properly admitted as fact testimony because Appellants 13 waived their challenge to the valuation of the assets. 14 Appellants never objected to Gasser’s valuation testimony or 15 suggested that the evidence was unreliable. See, e.g. , 16 United States v. Yu-Leung , 51 F.3d 1116, 1122 (2d Cir. 17 1995). Indeed, the only evidence in the record concerning 18 the value of the assets came from Gasser. Appellants 19 offered no evidence whatsoever on this point. 20 Finally, Appellants contend that compensatory damages 21 should not have been awarded to Appellees because the only 22 entity that suffered damages as a result of the removal of 237 the assets prior to the auction was the estate of Infanti 1 International. We disagree that Appellees were not harmed 2 as a result of Appellants’ actions. Appellees hold a claim 3 to the assets of Infanti International and thus, any 4 reduction in the value of the auctioned assets harmed their 5 ability to recover on that claim. Arguably, the Damages 6 Order should have awarded damages to the Receiver as 7 representative of the Infanti estate. As counsel for 8 Appellants conceded at oral argument, any error was harmless 9 because Appellees’ claim had first priority and far exceeds 10 the damages awarded in this case. 11 We have considered Appellants’ remaining arguments and, 12 after a thorough review of the record, find them to be 13 without merit. 14 For the foregoing reasons, the judgment of the district 15 court is **AFFIRMED**

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FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 20