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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: March 16, 2018

First Department Declines to Bar Appeal Under the Fugitive Disentitlement Doctrine

On March 8, 2018, the First Department issued a decision in Gem Holdco, LLC v. Changing World Tech., L.P., 2018 NY Slip Op. 01563, declining to bar an appeal under the fugitive disbarment doctrine, explaining:

We also decline to bar the appeals based on the fugitive disentitlement doctrine. That doctrine permits a court to dismiss an appeal in civil cases where the party seeking relief is a fugitive evading the law whose absence frustrates the enforcement of a judgment or order.

The doctrine applies where the fugitive is a former New York resident who changed residency or otherwise fled to another state in a willful and deliberate effort to avoid the jurisdiction of the New York courts; was a resident of another state present in New York when an arrest warrant was issued who fled the state in order to avoid an arrest warrant; or, as in Wechsler v Wechsler (45 AD3d 470 [1st Dept 2007]), was wanted in New York pursuant to a warrant and refused to return to the state for fear of being arrested in defiance of a separate court order directing the fugitive to appear in court. Absent a clear showing that Danzik took improper steps to avoid extradition, the doctrine does not apply where, as here, he never resided in New York, was not present in New York when the arrest warrant was issued, has not appeared in New York to face the arrest warrant, and has not defied a separate order to appear. This more narrow application of the doctrine satisfies all its principal rationales. We also note that there is no basis for applying the doctrine to this corporate appellant.

(Internal citations omitted). The court went on to affirm the trial court decision.

This decision illustrates that courts often develop doctrines for things that one might not even consider until it comes up, like what to do when a litigant is a fugitive. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where an opponent has fled the jurisdiction and you do not know what to do next.

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