Gevorkyan v. Judelson

Filing

OPINION, reverse the judgment of the district court, per curiam DJ, BDP, DAL, FILED.[2088232] [15-3249]

Case 15-3249, Document 113-1, 07/28/2017, 2088232, Page1 of 4

15-3249-cv
Gevorkyan v. Judelson

1

In the

2

United States Court of Appeals

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33

For the Second Circuit
________
August Term, 2016
No. 15-3249-cv
KARINE GEVORKYAN, ARTHUR BOGORAZ,
INNA MOLDAVER, AND SAM MOLDAVER,
Plaintiffs-Appellants,
v.
IRA JUDELSON,
Defendant-Appellee.
________
Appeal from the United States District Court
for the Southern District of New York.
No. 13-cv-08383 (RMB) ¯ Richard M. Berman, Judge.
________
Argued: September 14, 2016
Question Certified: November 14, 2016
Certified Question Answered: June 27, 2017
Decided: July 28, 2017
________
Before: JACOBS, PARKER, and LIVINGSTON, Circuit Judges.
________

Case 15-3249, Document 113-1, 07/28/2017, 2088232, Page2 of 4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

We certified to the New York Court of Appeals the question of
whether New York law permits a bail bondsman to retain a
premium where the bail was rejected pursuant to NYCPL § 520.30
and the defendant was never admitted to bail. The Court of Appeals
answered in the negative, ruling that New York Insurance Law
“prohibits a bail bond surety from retaining a premium when the
criminal defendant is not released on bail.” That conclusion being
determinative of this appeal, we REVERSE the judgment of the
district court and REMAND the case with instructions to enter
judgment in favor of appellants.

17
18
19

KYLE B. WATTERS, Kyle B. Watters, PC, Bayside,
NY, for Defendant-Appellee Ira Judelson.*
________

________
ANDREW LAVOOTT BLUESTONE, New York, NY, for
Plaintiffs-Appellants Karine Gevorkyan, Arthur
Bogoraz, Inna Moldaver, Sam Moldaver.

*

Attorney Jonathan Svetkey authored Defendant-Appellee’s brief on appeal and argued
before us. Attorney Svetkey withdrew as Defendant-Appellee’s counsel on July 12, 2017,
and Attorney Watters filed a notice of appearance the same day.
2

Case 15-3249, Document 113-1, 07/28/2017, 2088232, Page3 of 4

1

PER CURIAM:

2
3
4
5
6
7
8
9
10
11
12
13
14

On November 14, 2016, we certified the following question to
the New York Court of Appeals.

15

Gevorkyan v. Judelson, 841 F.3d 584, 589 (2d Cir. 2016).1 In certifying

16

this question, we noted that “the resolution of this question will

17

determine the outcome of this appeal,” because if “New York law

18

does not permit a bail bond agent to retain its premium following

19

the rejection of a bail package at a sufficiency hearing, the district

20

court would be reversed.” Id.

Whether an entity engaged in the “bail business,”
as defined in [New York Insurance Law (“NYIL”)]
§ 6801(a)(1), may retain its “premium or
compensation,” as described in NYIL § 6804(a),
where a bond posted pursuant to NYCPL § 520.20
is denied at a bail-sufficiency hearing conducted
pursuant to NYCPL § 520.30, and the criminal
defendant that is the subject of the bond is never
admitted to bail.

21

The New York Court of Appeals has now answered our

22

certified question. See Gevorkyan v. Judelson, – N.E. 3d –, 2017 WL

23

2742192 (June 27, 2017).

24

Insurance Law “prohibits a bail bond surety from retaining a

25

premium when the criminal defendant is not released on bail,” and

26

that a bail bond surety’s retention of a premium under such

27

circumstances contravenes the “insurance law principle that

28

premium follows risk.” Id., slip op. at 10.

The Court concluded that New York

29

The Court of Appeals’ ruling requires that we reverse the

30

judgment of the district court. As we previously noted, the district
1

We assume familiarity with our certification opinion.
3

Case 15-3249, Document 113-1, 07/28/2017, 2088232, Page4 of 4

1

court rested its conclusion that Judelson could retain his premium

2

exclusively on principles of contract interpretation. It did so because

3

it found that existing New York precedent was “not dispositive” of

4

the present issue. App’x at 37. The Court of Appeals has now made

5

clear the principle of New York law that decides this issue: because

6

Bogoraz was never admitted to bail, New York Insurance Law

7

precludes Judelson from retaining the premium. This prohibition

8

applies regardless of the terms of the parties’ contract because,

9

under New York law, contractual provisions that contravene

10

applicable laws in ways that harm the public policies underlying

11

those laws are unenforceable.

12

A.D.3d 92, 99–100 (2d Dep’t 2011) (citing, inter alia, Galbreath-Ruffin

13

Corp. v. 40th & 3rd Corp., 19 N.Y.2d 354, 364 (1967)). The Court of

14

Appeals has now clearly opined that a bail bondsman’s retention of

15

a premium after the denial of bail violates New York law and runs

16

afoul of an important public policy underlying New York Insurance

17

Law. Accordingly, we REVERSE the judgment of the district court

18

and REMAND the case with instructions to enter judgment in favor

19

of appellants.

See Village Taxi Corp. v. Beltre, 91

4