Giminiani v. Cesar

Summarized by Joel Levitin , Cahill Gordon & Reindel LLP
12 years 5 months ago

Citation:

Case No. 12-4356-bk (2d Cir. September 17, 2013)

Tag(s):

Ruling:

By Summary Order (with no precedential effect), the Court of Appeals affirmed the judgments of the lower courts. With respect to the dismissal of the fraud claim, the Court of Appeals held that the Bankruptcy Court did not err in finding that Appellant had failed to carry his burden of proof and did not identify clear error in the Bankruptcy Court’s factual determination. In addition, the Court of Appeals affirmed on the basis that Appellant failed to challenge the lower courts' dismissal of the fraud claim on the basis of collateral estoppel (based on the prior decision of the New York State Supreme Court in Giminiani v. Cesar, No 8315-07 (N.Y. Sup. Ct. Jan. 30, 2008). With respect to the trial testimony, the Court of Appeals also held that the Bankruptcy Court’s actions were not improvident because of Appellant’s awareness of deadlines and procedures, his late disclosure of a potential expert witness was not accompanied by the requisite report and list of witness qualifications, and his failure to demonstrate that his substantial rights were prejudiced by the exclusion of testimony. Moreover, the Court of Appeals distinguished admission of testimony of a lay witness for Appellee that was disclosed late from testimony of Appellant's expert, which would have required adjournment of the trial to allow for submission of an expert report.

Procedural context:

Appeal from the District Court’s order (1) affirming the Bankruptcy Court’s dismissal of a complaint seeking to hold a claim of fraud non-dischargeable under Bankruptcy Code § 523 (a)(2)(A) and (2) identifying no error in the Bankruptcy Court’s preclusion and admission of certain trial testimony.

Facts:

Appellant, David Giminiani, purchased Acme Press, Inc., from Appellee, Michael Cesar. Appellant alleged that debt arising from such purchase was non-dischargeable on the basis of fraud. During trial, the testimony of an expert witness of Appellant, who was identified after the deadline set forth in a scheduling order, was precluded by the Bankruptcy Court. In contrast, the testimony of a late-identified non-expert witness of Appellee (whom the Bankruptcy Court mistakenly thought had been previously deposed), was admitted by the Bankruptcy Court.

Judge(s):

Reena Raggi, Gerard E. Lynch, Raymond j. Lohier, Jr., Circuit Judges

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