Complaint,Petition: New York State Office Of Victim Services On Behalf Of Mahogany Yuelles v. David Gilmore

On March 17, 2023 a Complaint,Petition was filed involving a dispute between New York State Office Of Victim Services On Behalf Of Mahogany Yuelles, and David Gilmore, for Special Proceedings - Other (Son of Sam Injunction) in the District Court of Albany County.

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FILED: ALBANY COUNTY CLERK 03/17/2023 02:18 PM INDEX NO. 902439-23
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/17/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
In the Matter of the Application of the NEW YORK
STATE OFFICE OF VICTIM SERVICES, on behalf of
Mahogany Yuelles, the crime victim, and all other victims
of respondent’s crimes,
VERIFIED PETITION
Petitioner, FOR PRELIMINARY
INJUNCTIVE RELIEF
For Preliminary Injunctive Relief Pursuant to PURSUANT TO
Executive Law §632-a EXEC. LAW §632-A

-against- Index No.

DAVID GILMORE (NYSID No. 02683345Y),

Respondent.

Petitioner, NEW YORK STATE OFFICE OF VICTIM SERVICES, on behalf of

Mahogany Yuelles, the crime victim, and all other victims of respondent’s crimes, as and for its

verified petition, respectfully alleges:

1. Pursuant to Executive Law §622, the Legislature created the New York State Crime

Victims Board. Pursuant to Chapter 56 of the laws of 2010, the former New York State Crime

Victims Board is now known as the New York State Office of Victims Services (the “Office”)

effective June 22, 2010 and retains the full powers and authority of the former New York State

Crime Victims Board under Executive Law §632-a (the “Son of Sam” Law).

2. The Office has its principal business address at Alfred E. Smith State Office

Building, 80 South Swan Street, 2nd Floor, in the City and County of Albany, New York 12210.

3. This is an application for preliminary injunctive relief brought pursuant to

Executive Law §632-a (6) which grants the Office the authority to seek the “provisional remedies

of attachment, injunction, receivership and notice of pendency” to preserve “profits of a crime”

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(see Exec. L. §632-a [1][b]) or “funds of a convicted person” (see Exec. L. §632-a [1][c]), upon

receiving notice that the victim of a specified crime, or their representative, either has commenced,

or intends to commence an action against the respondent, a convicted person, for damages arising

out of the specified crime for which the respondent was convicted (see Exec. L. §632-a [5][a]-[c]).

4. Attached hereto as Exhibit A is a copy of a sentence and commitment sheet

confirming, as indicated on Repository Inquiry with the Department of Criminal Justice Services,

that the respondent, DAVID GILMORE (NYSID No. 02683345Y), was sentenced by Kings

County Supreme Court on January 18, 2018, to a term of 3 imprisonment and 3 years post release

supervision following his conviction of Attempted Burglary 2nd Degree.

5. Attempted Burglary 2nd Degree is a “specified crime” pursuant to Executive Law

§632-a(1)(e)(i)(D).

6. Upon information and belief, the current address for the respondent is 5 Fleet Walk

Apt. 5C Brooklyn, New York 11201.

7. General Municipal Law §70 requires the Comptroller to send a notice to the Office

at least 30 days before making any payment in excess of $10,000.00 to a person convicted of a

crime. On January 6, 2023, the Office of the New York City Comptroller sent a notice email to the

Office advising that the Comptroller anticipated paying the sum of $30,000.00 to the respondent.

A copy of this notice is attached hereto and made a part hereof, marked Exhibit B.

8. As required by Executive Law §632-a(2)(c), upon receiving such notifications the

Office located and notified the respondent’s crime victim, Mahogany Yuelles, of the existence of

such funds by letter dated January 11, 2023.

9. By Affidavit dated January 31, 2023, Mahogany Yuelles, the crime victim, gave

written notice to the Office of an intent to commence a civil claim against respondent, pursuant to

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Executive Law §632-a (3) & (4), for money damages stemming from the commission of the

aforesaid crime. A copy of such notice is attached hereto and made a part hereof, marked Exhibit

10. Executive Law §632-a(5)(c) authorizes the Office, upon its having received notice

of an action to be brought by the crime victim, to “immediately take such actions as are necessary

to...avoid the wasting of . . . newly discovered profits of a crime or . . . funds of a convicted person

. . .”.

11. Pursuant to Executive Law §632-a(6), the Office, acting on behalf of crime victims,

has the authority to apply for any and all provisional remedies that are available to the victims,

including the remedies of attachment, injunction, receivership and notice of pendency.

12. Although attachment and a temporary restraining order to assist in the attachment

are among the Office’s available provisional remedies where, as here, the underlying action is

brought pursuant to Executive Law §632-a (CPLR 6201[4] and 6210), the Office wants to avoid

the unnecessary dissipation of the inmate’s funds through poundage and incidental expenses

associated with attachment. The Office, therefore, seeks injunctive relief to preserve as much of

the inmate’s funds as possible to satisfy any judgment in favor of the victim, or to return to the

inmate should the crime victim’s action not be successful.

13. Upon information and belief, the funds subject to the proposed injunctive relief

include funds to be paid to respondent pursuant to a October 28, 2022, Release signed by

respondent, and Amended Stipulation and Order of Settlement and Discontinuance signed by the

parties on October 11, 2022 in settlement of the action commenced by the respondent in the

Supreme Court of the State of New York County of Bronx, entitled DAVID GILMORE vs. The

City of New York, et al. (Index No. 809252/2021E) (Claim No. 2022 PI 005482), for personal

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injuries for the sum of $30,000.00. A copy of such closing papers is attached hereto and made a

part hereof, marked Exhibit D.

14. Excepted from the scope of the proposed preliminary injunctive relief would be

that portion of the sum of $30,000.00 which represents attorneys’ fees and disbursements incurred

by respondent in the hereinbefore mentioned Supreme Court of the State of New York County of

Bronx action, and 10% of compensatory damages remaining after first subtracting said attorney’s

fees and disbursements which amounts are exempt from the Son of Sam law freeze, pursuant to

Executive Law §632-a(3) and CPLR §5205(k).

15. Upon information and belief, the respondent was represented in the aforementioned

Supreme Court, Bronx County action by Elliot H. Fuld, Esq. and the law offices of Elliot H. Fuld

with law offices at 930 Grand Concourse, Suite 16, Bronx, NY 10451. Upon information and

belief, for purposes of CPLR §5205(k), there are no punitive damages included in the said funds.

16. The Office of the New York City Comptroller has advised the Office that they will

shortly draw a check in the sum of $30,000.00 for damages, costs, disbursements and legal fees

payable jointly to respondent DAVID GILMORE (NYSID No. 02683345Y) and Elliot H. Fuld,

Esq. and the law offices of Elliot H. Fuld with law offices at 930 Grand Concourse, Suite 16,

Bronx, NY 10451, attorneys for the respondent in the aforesaid action.

I. Likelihood of Success on the Merits

17. The right of the crime victim to commence such an action is statutory, pursuant to

Executive Law §632-a(3), and is premised upon the following facts:

a. Mahogany Yuelles is the "crime victim" as defined in Executive Law §632-a (1)

(d);

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b. The crime victim was the victim of a “specified crime” as defined in Executive Law

§632-a(1)(e)(i);

c. The funds sought to be preserved herein, constitute “fund of a convicted person”

(Executive Law §632-a(1)(c)).

18. Respondent’s conviction is prima facie evidence that the crime victim has valid and

meritorious causes of action against respondent under the common law and pursuant to Executive

Law §632-a(3). It is probable, therefore, that the crime victim will succeed on the merits of such

causes of action.

II. Irreparable Harm

19. Upon information and belief, all of the aforesaid funds in the sum of $30,000.00

except that which represents attorneys’ fees and disbursements incurred by respondent in the

hereinbefore mentioned Supreme Court Bronx County action are either now available or will

shortly be available for disbursement by respondent.

20. Upon information and belief, the money damages sought by and to which the crime

victim is entitled will exceed the aforesaid amount of the settlement proceeds obtained by

respondent, and the threatened disposition by the respondent of such funds would tend to render

the crime victim’s judgment ineffectual.

21. Upon information and belief, and absent injunctive or other provisional relief, the

respondent’s interest in the settlement proceeds could be assigned away or the whole or substantial

portions of the funds which OVS is seeking to enjoin could be dissipated and thus put beyond the

reach of OVS, causing the crime victim to suffer immediate irreparable harm, and be unable to

satisfy any judgment obtained.

III. Balance of the Equities

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22. Upon information and belief, the objective of the Legislature in enacting Executive

Law §632-a is to ensure that any funds obtained by persons convicted of specified crimes are

preserved and made available to compensate the victims of those crimes or their representatives.

23. The Legislature has chosen to exempt attorneys’ fees, disbursements and 10% of

respondent’s personal injury award from the amount available to the crime victim for recovery.

25. Allowing the respondent and/or his representatives to dissipate or assign away more

than that or any portion of his interest in the aforesaid settlement would frustrate the objectives of

the statute. Thus, the balance of the equities, therefore, weighs in favor of granting all of the

equitable relief requested herein.

26. Upon information and belief, a temporary restraining order is being sought herewith

to prevent the respondent convicted person or persons acting on his behalf from placing funds

dissipating, encumbering or assigning what OVS believe to be the only funds he would have

available to satisfy a judgment obtained by the crime victim, which would frustrate the public’s

interest in ensuring compensation to crime victims.

27. Upon information and belief, the giving notice of this application could

significantly prejudice the crime victim on whose behalf this proceeding has been instituted by

creating a window of opportunity for the respondent convicted person and/or his representatives

to place the funds beyond the reach of the Courts or Office of Victim Services or create additional

encumbrances that would frustrate the public’s interest in ensuring compensation to crime victims.

28. Absent provisional relief, respondent’s dissipation of his assets will serve to defeat

the status quo and unnecessarily place at risk an effective right to recovery pursuant to Executive

Law §632a.

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29. This application also seeks alternate methods of service of process under CPLR

§308(5) because the office believes that such alternate methods of service are needed to prevent

further and/or unnecessary delays in preserving all of the funds specified herein for the benefit of

the crime victim.

30. The Office seeks an Order enjoining and restraining the respondent DAVID

GILMORE (NYSID No. 02683345Y), and his prospective garnishees, Elliot H. Fuld, Esq. and the

law offices of Elliot H. Fuld with law offices at 930 Grand Concourse, Suite 16, Bronx, NY 10451,

the Office of the New York City Comptroller, with business offices located at 1 Centre Street,

New York, New York 10007, and any other person acting on their behalf, from transferring

encumbering or otherwise disposing of any non-exempt portion of the aforesaid proceeds payable

to respondent pursuant to the aforesaid settlement in the Supreme Court, Bronx County action

entitled DAVID GILMORE vs. The City of New York, et al. (Index No. 809252/2021E) (Claim No.

2022 PI 005482), pending the hearing and determination of the instant proceeding; and, if the relief

sought by the proceeding is granted, pending the service of an order granting a Preliminary

Injunction upon respondent, his aforesaid attorneys, and any other garnishees.

31. The Office further requests that those portions of the aforesaid sum of $30,000.00

which represents attorney’s fees and disbursements incurred by respondent in the hereinbefore

mentioned settlement in the Supreme Court of New York County of Bronx action, and 10% of the

compensatory damages calculated thereafter (exempt from execution pursuant to Executive Law

§632-a[3] and CPLR §5205[k]), be subject to the temporary restraining order requested herein

pending verification of the amount of reasonable attorneys’ fees and disbursements by the

respondent’s counsel.

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32. Neither the Office nor, upon information and belief, the crime victim has made any

previous application for the relief requested herein, or for any other provisional remedy in

connection with any property of respondent or any action brought by the crime victim herein

against respondent, pursuant to Executive Law §632-a.

33. There is no adequate remedy at law.

WHEREFORE, it is respectfully requested that the Court grant all of the relief requested

in the Order to Show Cause, together with such other and further relief as the Court deems just and

proper, together with the costs and disbursements of this proceeding.

Dated: Albany, New York
---------------------
February 7, 2023 March 16, 2023

LETITIA JAMES
Attorney General of the State of New York
Attorney for Petitioner –New York State Office
of Victim Services
The Capitol
Albany, New York 12224

WILLIAM A. SCOTT
Assistant Attorney General, of Counsel
Telephone: (518) 776-2255
FAX: (518) 915-7738
william.scott@ag.ny.gov

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VERIFICATION

I make this verification on behalf of the petitioner in the instant lawsuit. I am an Attorney

2 at the New York State Office of Victim Services (“Office”).

I have read the foregoing Petition and the same is true to the best of my knowledge and

belief, except as to those matters stated upon information and belief, as to which I believe them to

be true.

This verification is made by me pursuant to CPLR 3020(d)(2), since I am familiar and

acquainted with all facts and matters pertaining to the contents of the subject Petition. The sources

of my information, and the grounds of my belief as to all facts and matters in the foregoing Petition

stated to be upon my information and belief, are as follows: the scope and subject matter of my

job duties, personal involvement with some of the facts and circumstances underlying the Petition;

general investigation of the facts of the case, records maintained by the Office, and

communications with staff that also have had personal involvement with the facts and

circumstances underlying the Petition.

Dated: Albany, New York
February 7, 2023

ANTONIA G. MINUTOLI

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Complaint,Petition: New York State Office Of Victim Services On Behalf Of Mahogany Yuelles v. David Gilmore

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