To suggest that the Second Circuit send a certified question to the New York Court of Appeals rushes things a little, but only a little. Bounkhoun v. Barnes, a decision issued in April 2018 by the U.S. District Court for the Western District of New York, has not (yet) reached the Second Circuit. It would have gone to the federal appellate court for sure if its author, Judge Richard Arcara, had accepted a controversial notion from the Magistrate Judge who first heard Bounkhoun.The Report and Recommendation in Bounkhoun suggested that a criminal conviction be necessary for civil redress under the statute. Judge Arcara, disagreeing, declined to grant a motion to dismiss by the defendants, partners in the now divided Cellino & Barnes. (See Scott Flaherty, “Cellino & Barnes Appear Headed for ‘Divorce,’“ N.Y.L.J. (May 11, 2017)). Bounkhoun is now perfectly suited to the unique technology of a certified question.
Our suggestion runs 20 words. Which elements not expressly provisioned in Judiciary Law §487, if any, are necessary for a successful claim of treble damages?
