Concord Appeal Too Early, Says Judge

By John Emerson
MONTICELLO — May 16, 2000 -- A federal appeals court ruled last week that Sullivan County was premature in appealing a decision issued by Federal Court Judge Charles Brieant that Hy Singer, Country Bank and Joseph Murphy’s Value Resort Properties were entitled to a portion of the proceeds from the sale of the Concord Hotel.
The ruling, issued by the Second Circuit Court of Appeals, dismissed the county’s appeal, stating that a final ruling had not yet been issued and the appeal was premature. Sullivan County Attorney Ira Cohen said that, once a final ruling in the original case is made, the county will be back in to argue its appeal on the merits.
“This was a procedural issue and had nothing to do with the merits of our case or the merits of the appeal,” he said. “The court could have heard the arguments but chose not to, so we have to wait.”
Brieant’s decision was made as an appellate judge, stemming from several rulings issued by U.S. Bankruptcy Court Judge Adlai Hardin made during the convoluted Concord bankruptcy case. Brieant overturned several decisions Hardin made and returned the case to the bankruptcy court judge for a final ruling.
The county appealed Brieant’s ruling before Hardin had issued a final ruling in the case. The 2nd Circuit ruled the appeal had to come after Hardin issued a final ruling on the bankruptcy plan.
“We did not think we were appealing from an interlocutory ruling and thought that it was more prudent to appeal now rather than possibly missing our chance to appeal,” he said. “Now we have to go back to Judge Hardin, get him to deny the original plan of reorganization and then move to reinstate the appeal.”
At stake in the appeal is whether Hardin or Brieant was correct in deciding that Singer, Country Bank and Murphy were entitled to a share of the proceeds. If Hardin was correct in his original rulings, the county will receive a total of more than $7 million from the hotel’s sale – while Murphy and the rest will be cut out. If Brieant is correct, the county, which has already received about $3.5 million, will not get anything more.
In a letter to the editor that appears in this issue, lawyer Leon Greenberg chastised both Cohen and the county legislature for filing the appeal. He also presented estimates of the costs involved in the appeal so far, estimating the development of the record of appeal to be $10,000, the cost of the appellate brief to be $61,000 and lawyer’s fees to be present at the argument at $25,000.
“I know he’s wrong on the cost of the record, because all of the parties involved are filing a joint appendix and we’re all sharing the costs to cut down on expenses,” Cohen said. “As far as the $61,000 for the cost of a 61-page brief, we’re charged by the hour, not the page, and we haven’t even seen a bill yet.”
Cohen said the county has submitted a proposed order to Hardin so that the issue can make its way back to the 2nd Circuit and a hearing on the merits as quickly as possible. He estimated that the case will be argued before the appellate court sometime in September. He also expressed confidence in the county’s position.
“Our day in court is yet to come,” he said. “We will have our day in court, and when the 2nd Circuit addresses the merits of the case, we are confident that Judge Brieant’s ruling will be overturned and Judge Hardin’s rulings reinstated.”