Court Has Serious Doubts About Couri's Credibility, Denies Motion.

On December 31, 2009, Justice Michael D. Stallman denied James C. Couri’s motion to restore his $24M damage claim against John Siebert. Couri argued he was entitled to restoration of his claim (that was dismissed on February 28, 2008 by the Appellate Division, First Department) because Siebert's attorney, Joseph Burke, had “secretly” filed a Note of Issue. Couri reasoned that since discovery was closed by the filing of a Note of Issue, he could not have violated one-or-more of the four court orders directing him to provide signed tax authorizations. Thus, Couri believed his failure to comply with the court orders should not have served as a basis to dismiss his $24M claim. (Notably, the tax authorizations were deemed by Burke and the Appellate Division to be of critical importance. Arguably, they would have shown how Couri, and the corporations controlled by Couri, improperly disposed of Siebert’s $8M.) In sharp contrast, Joseph Burke credibly denied that he filed the Note of Issue --- that was, by the way, not signed by Joseph Burke, rather it was handwritten and signed by Couri himself. Thus, contrary to Couri's claims, it appears it was Couri and not Burke who filed the Note of Issue. 

Couri, desparate to explain how a Note of Issue --- handwritten and signed by him ---came to be filed by Burke, was compelled to refer to a handwritten letter Couri claims he wrote and claims was hand-delivered to Judge Heitler, who was then assigned to the case. Couri stated in this letter that the Note of Issue (enclosed with the letter) should NOT to be filed because discovery was not yet complete. Of course, Couri's scenario makes no sense. No one prepares a Note of Issue, signs it, and writes a letter to the assigned judge stating it “should not be filed.” It appears Couri cooked up this letter to support a claim that Burke somehow gained control of the original Note of Issue and filed it with the Court Clerk (without a copy of Couri's letter). Of course, there was no reason for Burke to file the Note of Issue because Burke had not yet received Couri's tax authorizations, among other items of discovery. Indeed, if Couri had given notice to Burke of the filing, very likely Burke would have moved to strike the Note of Issue for the very reason that Couri had not provided the tax authorizations. In short, Couri failed to give a credible explanation why Burke would file Couri's Note of Issue. In summarizing Couri's claim, Judge Stallman wrote, ["Couri's] contention casts his credibility in serious doubt."

Finally, by this motion Couri attempted to clog Judge Stallman's docket with another unnecessary motion --- which is consistent with his prior conduct. Indeed, Judge Stallman's December 31, 2009 Order states that Couri should have brought the motion before the Appellate Division, First Department, for it was the court that dismissed Couri's $24M claim.