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After driving in the dark from Paphos we were met by Max at the Eko Garage and followed him to the most super apartment in Peyia for our two week stay. Max was great took us through all the facilities and helped us put the air conditioning on. He was very helpful. Although dark the apartment came to life when the lights went on it was spacious, clean and beautifully kept - just our type of place to stay a real home from home.
After a good nights sleep we woke to the sound of bells ringing the goats were on the move! To be fair this is pretty much the only sound you will hear during your stay it is so peaceful and blissfully quiet you can completely re-charge your batteries here!
The apartment had all the niceties of home, lots of plastic containers to put rolls in for the beach a super ice bag and ice packs a great fridge freezer which meant you could make and store your ice cubes - essential after a day at the beach when you want a long cold drink to quench your thirst. The kitchen has everything you need. The apartment is so well looked after. The balcony is a lovely place to have your breakfast and then in the evening to sit and listen to the insects and the final move of the goats going home to bed after a long day tramping and foraging around the hills - just amazing.
The Peyia village is lovely very quaint and has all you need. There are some great places to eat in Peyia and just a short drive down the hill you are in Coral Bay itself. We loved the large cod and chips from Howard at the Peyia Fish and Chip shop they were delicious. A real find is the Indian Take Away the Peshwari Naan Bread is out of this world. At Pizza Hut the Vanilla Milkshake is a must! English Breakfast in Coral Bay opposite Othello's is super 7 euros.
The pool is lovely it does get exceptionally hot but you can soon cool down in the pool. The hot tub is great to jump into after a long day in the sun and you want to just laze around, until you decide to go and eat such a treat.
We so enjoyed our stay we are booking again for 2014 we loved every moment we were there and the apartment was very special and so very well equipped. A great place to stay thoroughly recommended. Thank you to the Solomons for a wonderful two weeks recharging our batteries and enjoying the very peaceful and beautiful natural beauty which surrounds the complex - simply stunning book your flights now! If you want complete peace and tranquility this is the holiday for you.
Unfortunately the property is not as made out with certain facilities not as described. Smart TV with did not have access to certain UK channels, weak intermittent wifi. Apartment is smaller than photos make out. Sofa's heavily stained, double bed was extremely hard and uncomfortable. The pool area is also tired, with some parts needed some work, bridge over pool very rusty and unattractive. Pool unfortunately full of flies and insects, not sure if they had maintenance - only saw one person doing pool cleaning or maintenance in the entire 10 days there. Overall the photo's appear to be taken quite a few years back, and not true reflection of either the complex or the apartment now. Requires some TLC all around. On a plus side the neighbours around the complex were friendly and Pegia Coral Bay was nice to visit.
Big thank you to Deb and Tony for the wonderful extended break at Apartment Anastasia. We have stayed at the apartment on many occasions in the past and decided to have an extended stay from March until the end of April. The apartment proved to be ideal as the location is perfect for strolling into the main village of Peyia for provisions or a night out. We would certainly recommend this apartment for any length of stay.
After a nice easy drive to Peyia we met Max in the village, and we followed him to wonderful apartment . The photos do not do it justice you have to be there to appreciate the quality of the apartment and the furnishings. Plenty of space, 2 large bedrooms, 2 bathrooms plenty of wardrobe space , excellent furnishings in the living area 2 very comfy sofas, a large dining table , and a luxury kitchen with everything you need for a self catering holiday, the large balcony was well furnished with lovely views of the Akamas reserve.
Watching the goats early on a morning with there tinkerling bells start to graze then late evening watching them return was a nice site to see with a refreshing drink after a hot days exploring. The complex itself has everything you need, large swimming pool, jacuzzi, squash court , table tennis, gym, sauna and even a Bowling green, what more do you need!. In The village there a selection of restaurants to feast on I used trip advisor to find me the best restaurants in Peyia and coral Bay Area and went to most of the them. The best for me personally was Oniro's by the sea with the ship wreck. Stunning location and food .. All in all a wonderful holiday spent in a beautiful apartment . Hope to be returning guests in near future. Oh and a big thank you to Max who sorted the wifi out for us.
Appartement offrant de très bonnes prestations. Très bon accueil. Propres, moderne. Un balcon ouvrant sur un paysage de rêve. Des Britanniques vivent à l'année dans le complexe. Une belle plage de sable fin à quelques kilomètres (Coral Bay). Dans le village, des restaurants typiques (Chez le Cousin) et pas cher (moins de 50 euros pour 4 personnes, avec un plat copieux et une boisson + dessert offert). Grand sens du service.
Deb &Tom,It was exactly as described and some.people in the apartments so friendly and helpful a good mixture,the pool area never over crowded,the apartment spotless a thanks to max & rhian anything you need to know ask max nothing to much.liked the flexcy time on leaving,where possiable.we will defenitly be back.go into the village everything you need,meals in meals out loads of bars mix with the locals all in all agreat time the views are something else.we would recommend this holiday to friends and family again a thanks to all on team anastacia.we will be back.
A very satisfied Bren&Stewart [sheffield]
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1 Jan 2017 - 31 Mär 2017
7 Nächte Mindestaufenthalt
351 €
für 7 Nächte
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Summer 2017
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7 Nächte Mindestaufenthalt
410 €
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Autumn/Winter 2017
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351 €
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Payment can be made in Sterling upon arrival. Please note this is our preferred payment method.
Prices are based on up to 4 people sharing. Up to 2 extra people can be accommodated on the sofa bed at a cost of £25 per week each.
We have kept our rates as low as possible. Air conditioning is charged separately at a rate of 3 Euros per day per unit.
All pre arrival and post departure cleaning is included.. However, if the apartment requires additional cleaning to the usual turn around clean, you will be charged for the overtime as charged by the cleaning company. Please sweep floors and empty bins before you depart, leaving the apartment tidy and ready for the cleaning team.
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So me and my goofy ideas, I declared today "backwards day" at our home daycare. We are wearing our clothes backwards, walking backwards, saying our names backwards...a ton of ideas we all sat down and came up with that we could do backwards....and they are really excited that they get to eat their dessert before the healthy part of their lunches too. lol. Kids:)
So I'm currently sitting here with my jeans and hoodie on backwards and my hat backwards with a ponytail hanging in my face. LOL. If only Wayne would hurry up and get up so I could share a pic. lol.


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Traveling or seeing places educates people a lot. One can learn much more about any place by visiting it rather than reading about it. Different people travel for different reasons. There are some people who travel for the sake of pleasure. The people that are heavily busy either at their personal or professional life travel to different places for relieving their worries and anxieties. Paribar Tour & Travels was established in the year 2014 by Mr. Moloy Kumar Roy in Kolkata. We are the associate of Continental Tour & Travels. You can choose from our various tailor made tour packages according to your requirement and budget. In all packages, there are proper arrangements of traveling, food, lodging and sightseeing. We have tour packages for various places all over Bengal. We also have the facility of hotel booking at Puri, Digha, Gangtok, Pelling, Lava, Rishop, Darjeeling, Haridwar, Mussoorie, Shimla, Manali, Rajgir and Deoghar. We have arrangements for bus and car booking all over India.
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Apple Pie Punch (Adult Drink)
Total Time
Prep 10 mins
Cook 0 mins
Punch is a great party drink for larger groups. This super-simple punch is best served chilled and can be made in just minutes. Is from Semi Homemade Sandra Lee
Ingredients Nutrition
- 2 cups apple juice or 2 cups cider
- 4 ounces spiced rum
- 2 ounces cinnamon schnapps
- 1 red apple, sliced
- Combine apple juice, rum, and Schnapps in a punch bowl or pitcher.
- Serve punch over ice and garnish with red apple slices.


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J'aime cuisiner mais je suis la plupart du temps seule à manger ! les restes ça me connais !!!
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Whatever it is, sell a few portions on Super Marmite! It's a great way to interact with your local community and to get real feedback on your cuisine :)Post a meal


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For his main stage performance at Coachella last week, Ice Cube went all out, bringing up both Snoop Dogg and Common to the stage, as well as his former N.W.A group-mates MC Ren and DJ Yella. And yet, for as awesome as that must have been to witness, many left the performance with just one question on their mind: "Where was Dr. Dre?"
Apparently, the Dr. was just bidding his time, because last night, after a 27 year hiatus, the Beats mogul finally joined the rest of the living member of N.W.A onstage for an historic performance. Ren and Yella made their presence felt first to run through the classic track "Straight Outta Compton" after which Cube addressed the crowd and said, "You know, we missing somebody. Is there a Doctor in the motherf—ing house?"
The crowd lost its mind as Dr. Dre ambled out from behind the giant screen and immediately launched into the immortal "Still D.R.E." followed by the Tupac anthem, "California Love." It was a moment that won't soon be forgotten in Coachella history, and probably the only thing that could have hoped to overshadow an appearance by Kendrick Lamar to perform the song "Alright" earlier in the set.
Check out the reunion below.


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Iran's President Hassan Rouhani promised "prompt response" if U.S. sanctions are extended by 10 years
President-elect Trump had plenty to say about the war on ISIS during the campaign, suggesting "bombing the hell out of" the terror group. But as Holly Williams reports, conditions on the ground in Iraq and Syria complicate the decisions he'll have to make.
President-elect Trump has threatened a trade war with China, yet he's bragged about his great business relationship with the Chinese. Trump's web of financial interests in China only adds up to the unprecedented conflicts posed by his global business. Julianna Goldman reports.
Right-wing populism and economic nationalism are mounting in several European nations, and some far-right parties are poised to gain significant power in coming elections
After more than two years of ISIS occupation, Iraq's second-largest city is being taken back by the Iraqi Army. Lara Logan reports from Mosul.
Airstrikes continue to pound the city of Aleppo. Talks on a ceasefire and access to humanitarian aid achieved little. Elizabeth Palmer reports from Aleppo, where she learned about some of the crude weaponry that is causing so much devastation.
The U.S. Army's 101st Airborne Division is preparing an airbase in northern Iraq that will be the tip of the spear for the coming battle to retake Mosul, Iraq's second-largest city, from ISIS. CBS News correspondent Holly Williams asks Maj. Gen. Gary Volesky about Americans' role in the fight.
About 1,800 migrants were rescued in the Mediterranean Sea on Wednesday, pushing the total this week above 10,000. Over four million Syrian refugees are still living precariously in the Middle East. Holly Williams has more.
More than 43 years after the Vietnam War ended, hundreds of thousands of cluster bombs dropped by U.S. planes are still maiming and killing people
The sham embassy operated by organized crime issued both legitimate and counterfeit U.S. visas for $6,000, U.S. State Department says
Brazilian Football Confederation has not clarified if matches will take place next weekend, after the Chapecoense plane crash killed players
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Austria was the first European nation to test the grip of post-Trump populism, giving hope to the continent's progressives
Cuban officials made a last-minute cancellation of plans to broadcast the events live on national and international television
A 23-year-old was arrested for shooting three women outside a restaurant in southeastern Finland with a rifle
Russian president explains why he thinks the U.S. president-elect is a "clever man," as others fret over his geopolitical choices
On December 4, 2006, an elusive ocean beast was captured live on video for the very first time
While there was initial battlefield successes, the progress of Iraqi forces has slowed down after fierce ISIS counterattacks
Austria, which holds presidential election Sunday, among first to test staying power of right-wing populism in Europe
Ahead of 75th anniversary of Pearl Harbor attack, Gen. Douglas MacArthur's Australia office restored as museum
Donald Trump seems to give endorsement to bloody drug war being waged by President Rodrigo Duterte
For Vladimir Putin, sanctions relief is gateway to goal of establishing Russia as political, economic equivalent of U.S.
Donald Trump's call with Taiwan leader could open rift between China, U.S. before president-elect takes office
More than four decades after she was discovered, "Lucy" is still providing new insights on human origins


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May 3, 1990
MARC B. GOODMAN, PETITIONERv.DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, RESPONDENT, HENRY R. GRAYBILL, INTERVENOR
Petition for Review of a Decision of the District of Columbia Rental Housing Commission
Before Belson, Schwelb and Farrell, Associate Judges.
SCHWELB, Associate Judge: Goodman asks us to review a decision of the District of Columbia Rental Housing Commission holding that his landlord, Graybill, was entitled to claim exemption from rent stabilization under the so-called "small landlord" provision of the Rental Housing Act. See D.C. Code § 45-1516 (a)(3) (1981). *fn1 This section excludes from coverage "any rental unit in any housing accommodation of 4 or fewer units." Id.; see Blacknall v. District of Columbia Rental Housing Commission, 544 A.2d 710, 711 (D.C. 1988). He also contends that he was denied the opportunity to present favorable evidence to the Commission, and that Graybill should not have been granted an exemption because he allegedly failed to give Goodman statutorily-required written notice, before the execution of Goodman's lease, that the property was not subject to the provisions of the Act. *fn2
We agree with the Commission that Graybill was entitled to the exemption, and we hold that Goodman has not presented us with an adequate record to support his claim that his right to present evidence was improperly restricted. The question regarding Graybill's alleged failure to provide Goodman with the statutorily-required notice is more difficult. *fn3 The point was never directly articulated to the Commission, and the Commission did not rule on it. Although there are some arguably extenuating circumstances in this case for Goodman's failure to preserve the issue, and although we are reluctant to insist on rigorous adherence to procedural niceties in proceedings under a remedial statute which relies in substantial part on lay litigants to enforce it, we are compelled to conclude that the record before us with respect to the landlord's alleged failure to comply with the statutory notice requirement is simply inadequate to enable us to review it in any meaningful way. No error having been demonstrated, we affirm the Commission's decision.
At all times relevant to this proceeding, Graybill and his wife owned a small apartment building at 4034 Calvert Street, N.W. *fn4 The building has five apartments, all of which were rented through June 30, 1980. After the resident of the basement apartment gave notice in May 1980 that she was vacating the unit, the Graybills decided not to re-rent it. On September 12, 1980, they filed a "Claim of Exemption Statement" with the Rental Accommodations Office in which they represented under oath that 4034 Calvert Street, N.W. contained four rental units. The Graybills further swore that neither of them had any direct or indirect interest in any other rental unit in the District of Columbia. The Commission found--and there is no evidence to the contrary--that the basement apartment was never again offered for rent.
On December 8, 1980, Goodman rented Apartment 4 on the second floor of the property. In early 1984, a dispute arose over his rent. Goodman filed a petition with the Rental Housing Commission alleging that he had been overcharged and that Graybill was not entitled to claim the "small landlord" exemption because the accommodation contained five rental units rather than four.
The petition precipitated a number of hearings before the agency. A hearing examiner initially ruled for Graybill on the question of coverage, but later convened another hearing and decided favorably toe Goodman. The Commission as then constituted (the former Commission) agreed with Goodman that Graybill was not entitled to the exemption, but remanded to the hearing examiner on certain issues relating to the proper remedy. The hearing examiner addressed and decided each of the issues remanded to him, but did not reopen the question of Graybill's right to the exemption since the Commission had already decided the point in Goodman's favor. Both parties appealed.
The present Commission, which had taken office while the case was proceeding on its labyrinthine route through the administrative process, decided not to limit itself to consideration of the issues which had been addressed by the hearing examiner on remand. Rather, the Commission elected to revisit the underlying question whether Graybill was entitled to the exemption. On June 3, 1988, in a comprehensive and thoughtful opinion, the Commission, citing intervening changes in the law, declined to follow its predecessor body's decision as "law of the case" and held instead that Graybill had qualified for the exemption. *fn6 The Commission ruled, in pertinent part, as follows:
In reviewing the record, we are mindful that one of the social goals of the Rental Housing Acts is to regulate and in some sense discourage the conversion of rental units to alternate uses. D.C. Code (1981 Ed.), § 45-1502 (4), and Id. (1986 Repl. Vol. 8), 45-2502 (4). But neither we nor the Court have viewed this policy as an absolute bar to conversion or removal of units from the market. We were careful in Blacknall, supra, *fn6 not to encourage the removal of units from the market, and to discourage the circumvention of rent control that would arise if a landlord were allowed to temporarily remove a unit from the market to acquire an exemption for remaining units. It was our intent in Blacknall to state clearly that a small landlord exemption could not be granted if the fifth unit was removed either temporarily or in bad faith.
In this case, we think the record compels a finding that the basement apartment was not temporarily removed from the market or removed in bad faith. This is evidenced by the fact that the unit was kept continuously vacant for more than four years after the claim of exemption was filed and before there was any controversy over the claim of exemption. There is nothing in the record to suggest that the landlord ever sought to return the basement apartment to the housing market after he had filed his claim of exemption and raised rents in the other four units, and the tenant introduced no evidence to suggest that the basement vacancy was temporary, not continuous, or obtained or maintained in bad faith. We find that the landlord met the evidentiary burden of establishing that the basement unit was continuously vacant for more than four years, and neither rented nor offered for rent during that time. While this may not be a "permanent" removal of the unit from the market, *fn7 it can hardly be classified as temporary or transitory. The record admits to no other finding. Once this evidence was admitted, the tenant proffered nothing to avoid its inevitable Conclusion: that for more than four years this landlord had only four units rented or offered for rent in the residential market. On the evidence of record, we find that the Rent Administrator abused his discretion in failing to make this inevitable finding.
By the tenant's own testimony, he knew of the claim of exemption from a conversation with the landlord approximately two years before he filed his petition. Thus he had ample time to observe whether the basement apartment appeared to be rented or occupied. Furthermore, in the almost four years that this case has been pending with its various appeals and arguments, the tenant has not even suggested that the basement unit was occupied during all of this time.
The landlord has the burden of proving that he is exempt from the coverage of the Rental Housing Act, and the statutory exemptions are to be narrowly construed. Revithes v. District of Columbia Rental Housing Commission, 536 A.2d 1007, 1017 (D.C. 1987); Remin v. District of Columbia Rental Housing Commission, 471 A.2d 275, 279 (D.C. 1984). The Act forecloses sophisticated as well as simple-minded modes of nullification or evasion. Blacknall, supra, 544 A.2d at 713 (concurring opinion). Notwithstanding this generous and expansive approach to the construction of a quintessentially remedial enactment, however, it is now established beyond cavil that landlords are permitted to remove rental units from the market, and that although vacant or temporarily withdrawn units are to be counted in determining eligibility for the exemption, permanently withdrawn units are not. Blacknall, supra, 544 A.2d at 713; Revithes, supra, 536 A.2d at 1016-17 & n.24. *fn8
The Graybills swore in their application for an exemption that there were only four rental units in the building. Both the former Commission and the present one so found. Goodman submitted no evidence to indicate that a fifth unit was on the market, either before he filed his petition or since. An apartment which had not been occupied for almost four years when Goodman filed his petition cannot fairly be characterized as having been "vacant" or "temporarily" withdrawn from the market. Cf. Revithes, supra. We therefore conclude that the Commission's finding to the effect that the basement unit had been sufficiently removed from the market is supported by substantial evidence and is not arbitrary or capricious. Accordingly, we must sustain it. Cohen v. District of Columbia Rental Housing Commission, 496 A.2d 603, 605 (D.C. 1985). Since the unit had been withdrawn from the market for a continuous period of long duration, Graybill was entitled to the exemption. Blacknall, supra, 544 A.2d at 713.
Goodman places heavy reliance on our decision in Revithes, supra. In that case, we reviewed in some depth the history of the "small landlord" exemption. 536 A.2d at 1013. We emphasized the remedial purposes of the Rental Housing Act, and held that it should be construed in a manner which would discourage its circumvention. Id. at 1015-16. We observed, in particular, that
the exclusion of vacant or temporarily withheld units from the aggregate number of a landlord's holdings would encourage landlords to withdraw rental units from the market in order to obtain higher rents for the remaining units. Such a result is diametrically opposed to the spirit and purpose of the rent control legislation.
Id. at 1016. We recognized, however, that "in proper circumstances, landlords are permitted to permanently remove rental units from the rental market." Id. at 1017 n.24 (emphasis in original). The Commission had concluded in Revithes that the units in question were merely vacant or had been temporarily withheld, and this court sustained that finding.
In the present case, on the other hand, the Commission, relying on the undisputed fact that the basement apartment had been unoccupied for four years prior to the filing of Goodman's petition, expressly found that the removal of the unit from the market was neither temporary nor done in bad faith. That is surely a rational Conclusion, and arguably an inescapable one. We therefore conclude that Goodman's reliance on Revithes is unavailing, and that the Commission correctly decided in Graybill's favor the question of coverage under the Act. *fn9
Goodman contends that the Commission based its findings on "fictitious" evidence which is not to be found anywhere in the record, and that he was denied the opportunity to present relevant testimony. He appears to contend that a true recitation of what took place before the agency would reveal all manner of skullduggery on the part of the landlord, his counsel, and the present Commission as well. The record, however, does not contain a transcript of any of the proceedings to which he alludes.
"It is appellant's duty to present this court with a record sufficient to show affirmatively that error occurred." Cobb v. Standard Drug Co., Inc., 453 A.2d 110, 111 (D.C. 1982); see Parker v. Stein, 557 A.2d 1319, 1323 (D.C. 1989). This principle applies with equal force to agency proceedings. Cohen, supra, 496 A.2d at 605. We must start with the premise that the agency's decision, like that of a trial court, is correct, and that the burden of demonstrating error is on the petitioner who challenges the decision. Id. "We cannot accept the factual representations in [Goodman's] brief as to what happened at the [agency hearings]." Id. at 607 n.5. Graybill denies that Goodman's recitation of events is accurate *fn10 and, without either a transcript or any stipulation or statement of proceedings and evidence in lieu thereof, we must operate on the assumption that the agency has recited the facts correctly. *fn11
A. General Considerations.
Goodman contends that Graybill failed to qualify for the exemption because he did not notify Goodman, before the execution of the lease, that the rent which could be charged for the apartment was not subject to the strictures of the Rental Housing Act. He relies on D.C. Code § 45-1686 (b) (1981), which then provided *fn12 that
prior to the execution of a lease or other rental agreement after the effective date of this subchapter, a prospective tenant of any unit exempted under subsection (a) of this section hall receive a notice in writing advising him or her that rent increases for the accommodation are not regulated by the Rent Stabilization Program.
The statute does not specify the consequences of noncompliance with its provisions, and this court has never directly considered the question. But see Chaney v. H. J. Turner Real Estate Co., TP 20, 347 (March 24, 1989) ("the failure to notify a tenant makes the claim of exemption void until proper notification is given"). *fn13
Graybill contends that Goodman has waived Graybill's alleged failure to provide him with written notice by not properly asserting it in his various submissions. On the merits, he argues that such alleged failure should not result in the loss of the exemption itself, especially since, according to Graybill, Goodman was in fact aware of the relevant facts for much of the period in question. Although he did not, in his brief, assert that he in fact gave Goodman the required notice, Graybill advised the court, in a letter to the clerk following oral argument, that "Mr. Graybill has never, at any time, accepted or conceded to Mr. Goodman's contention that did not receive such notice." It appears that the parties disagree as to the facts and that no resolution of their disagreement was accomplished during the administrative proceedings.
For reasons detailed below, we reach only the procedural issue.
B. The remedial character of the Act.
Before we assess Graybill's procedural contentions, we think it appropriate to place them in the proper statutory context. Our Rental Housing Act was designed, in substantial part, to protect low and moderate-income tenants from the erosion of their income from increased housing costs. D.C. Code § 45-2502 (a) (1986 Repl.). The Act is remedial in character. See Revithes, supra, 536 A.2d at 1016. Like other such legislation, it should be liberally construed to achieve its purposes. See Coles v. Penny, 174 U.S. App. D.C. 277, 283, 531 F.2d 609, 615 (1976). The wealthiest among us do not live in low- to moderate-income housing, and many complainants in cases brought under the Act are not affluent, nor are they in a position to afford to retain private counsel to conduct protracted proceedings before the Commission and the courts. Like the civil rights statute which the court construed in Coles, the Act relies largely on lay persons, operating without legal assistance, to initiate and litigate administrative and judicial proceedings. *fn14
" technicalities are particularly inappropriate in a statutory scheme." Love v. Pullman Co., 404 U.S. 522, 527, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972); Coles, supra, 174 U.S. App. D.C. at 282-83, 531 F.2d at 614-15. Although neither this court nor the Commission is authorized to overlook jurisdictional requirements in order to vindicate subjective notions of "fairness," it is appropriate for this court, in resolving procedural issues with respect to which reasonable people might differ, to keep in mind the remedial character of the statute and the important role which lay litigants play in its enforcement.
As we have previously noted, the proceedings in this case, now in their seventh calendar year, have an extraordinary and tortured history. On the bedrock question whether Graybill was entitled to the exemption, the hearing examiner ruled first for Graybill and then for Goodman. Following the first internal appeal, the former Commission sustained the examiner's decision denying the exemption but remanded the case for additional findings relating to the proper remedy. After the examiner had ruled on the questions which had been remanded to him, both sides appealed to the Commission, which had been reconstituted in the interim. When the present Commissioners decided the second internal appeal, they went beyond the issues on remand, overruled the decision of their predecessors, and held that Graybill was entitled to an exemption after all. It is the present Commission's decision which Goodman now asks us to review.
Graybill claims that during the course of those proceedings, Goodman failed adequately to assert his contentions as to lack of notice both in this court and in the proceedings before the Commission. We consider Goedman's submissions to both bodies.
C. Preservation of the issue in this court.
In requesting this court to set aside the present Commission's decision, Goodman filed a "Petition for Review of Agency Action." In conjunction with that petition, he submitted what he characterized as a "Supplemental Memorandum in Lieu of Brief." Appended to the latter document were several earlier memoranda which Goodman had prepare in support of his own motion for summary reversal and in opposition to Graybill's motion for summary affirmance. *fn15
In his petition for review, Goodman did not allude to the issue of lack of notice at all. In his supplemental memorandum, however, he identified one part of the fifteenth of his eighteen "issues presented" as being
whether the status of an exemption claim is affected by the landlord's violation of the statutory requirement that he advise prospective tenants in writing that a given building is not covered by rent control . . . .
In one of the motions memoranda appended to his "Supplemental Memorandum in Lieu of Brief," Goodman claimed that
Landlord never gave me or other tenants or prospective tenants the notice required by the Rental Housing acts that the unit are not regulated by rent stabilization.
Our Rule 15 (c), which governs this court's review of agency orders, requires that
concise statement of the nature of the proceedings as to which review is sought and the grounds on which petitioner relies and concerning which error is alleged shall be set forth in the petition.
Our Rule 28 (a) directs that briefs in this court include a statement of the issues presented for review.
Obviously, Goodman's submissions reflect something less than flawless formal compliance with these Rules. *fn16 Nevertheless, Graybill was adequately apprised of Goodman's claim with respect to notice of the exemption. Indeed, Graybill devoted a substantial portion of his brief in this court to the merits of the issue. Our Rules, like the Federal Rules of Civil Procedure, "reject the approach that pleading is a game of skill in which one misstep by counsel *fn17 may be decisive to the outcome . . . ." Conley v. Gibson, 355 U.S. 41, 48, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Frain v. District of Columbia, 572 A.2d 447, No. 87-677, slip op. at 13 (D.C. March 30, 1990). Given the subject matter of this appeal and our adoption of the approach exemplified by the decisions in Love and Coles, we conclude that Goodman has not waived, by his filings in this court or by any omission from them, his right to assert his claim that he did not receive notice of Graybill's exemption.
D. Preservation of the issue before the Commission.
In his Tenant Petition which initiated the proceedings before the Commission, Goodman alleged that
no written notice that a claim of exemption was on file was given me as a tenant or prospective tenant as required by section 3407.5 of the D.C. Rental Housing Regulations. *fn18
So far as we can determine from the record, this is the sole allusion to receipt or non-receipt by Goodman of the written notice of exemption from rent stabilization. *fn19 The point was not addressed in the written decisions of the Hearing Examiner, the former Commission, or the present Commission. No determination has been made by any fact-finder as to whether Goodman received notice and, if so, when this occurred. *fn20 To be sure, Graybill has not affirmatively asserted in any of his submissions that such notice was provided. We suspect that, if it had been, Graybill might well have been sufficiently enterprising to find and avail himself of some opportunity to tell us so. Nevertheless, an appellate court may not assume the responsibility of the agency to make findings of fact, nor may it decide a case, in the absence of agency findings, on the basis of inferences or hunches drawn from what a lawyer said or did not say.
The Supreme Court has instructed us that a reviewing court "usurps the agency's function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action." Unemployment Compensation Commission of Alaska v. Aragon, 329 U.S. 143, 155, 91 L. Ed. 136, 67 S. Ct. 245 (1946). In the absence of exceptional circumstances, a reviewing court will refuse to consider contentions not presented before the administrative agency at the appropriate time. Getty Oil Co. v. Andrus, 607 F.2d 253, 255-56 (9th Cir. 1979); see also 4 K. C. DAVIS, ADMINISTRATIVE LAW TREATISE § 26.7, at 441-44 (1983). This court has likewise held, citing Aragon, supra, that contentions not urged at the administrative level may not form the basis for overturning the decision on review. John D. Neumann Properties, Inc. v. District of Columbia Bd. of Appeals & Review, 268 A.2d 605, 606 (D.C. 1970). Like our federal colleagues, however, we have recognized that the courts may show a measure of flexibility in this regard when the interests of Justice so require. See, e.g., J. Parreco & Son v. District of Columbia Rental Housing Commission, 567 A.2d 43, 45 n.4 (D.C. 1989). *fn21
The question is whether the circumstances of this case are sufficiently exceptional to warrant our consideration of an issue which Goodman has failed meaningfully to preserve. We note in that regard that the sequence of events here was certainly unusual. At almost every stage of the proceedings prior to the present Commission's decision in Graybill's favor, Goodman had won the war of the exemption, having successfully urged that Graybill owned five units rather than four. When Goodman eventually lost own this point, this occurred only because the present Commission declined to follow the apparent law of the case when reviewing the examiner's decision on remand. *fn22 Understandably, during the period when he was the apparent winner with respect to coverage, Goodman's attention was not own notice. Under the law as enunciated by the hearing examiner and by the former Commission, receipt or non-receipt of notice was irrelevant because it had been determined that Graybill owned five units and was thus not entitled to the exemption at all.
Having persuaded the former Commission on the question of coverage, Goodman was not required to cross-appeal with respect to the issue of notice. He did, however, have the right to address that issue before the Commission and to claim lack of statutory notice as an alternate basis for sustaining the hearing examiner's favorable decision. As Justice Brandeis stated for the Court in United States v. American Railway Express Co., 265 U.S. 425, 435, 68 L. Ed. 1087, 44 S. Ct. 560 (1924),
the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.
Accord, Edwards v. Woods, 385 A.2d 780, 783 (D.C. 1978) ("n pursuing her defense on this appeal, is free to urge a rationale different from that utilized by the trial court"). As we have noted, however, Goodman did not address the notice issue in his submissions to the Commission or to the hearing examiner. That being so, he is in no position to complain about the failure of the Commission to decide the question.
Moreover, even if we were to conclude--and we do not--that Goodman was lulled by his string of victories on the issue of coverage into a justifiable belief that he need not press to the Commission his claim of lack of notice, any such lulling would surely have ended when the present Commission sustained Graybill's claim. Goodman had the right at that point to file a motion for reconsideration, see 14 D.C.M.R. § 3823.1 (1989), and to bring to the Commission's attention his contention that it had not addressed the notice issue, which he had raised in his initial petition. Goodman filed no such motion, however, and such omissions have been held to be fatal to those seeking judicial review of agency action in comparable situations. See, e.g., Garment Workers v. Quality Mfg. Co., 420 U.S. 276, 281, 43 L. Ed. 2d 189, 95 S. Ct. 972 n.3 (1975); Glaziers' Local No. 558 v. N.L.R.B., 132 U.S. App. D.C. 394, 399-400, 408 F.2d 197, 202-03 (1969) *fn23
The Supreme Court's decision in Garment Workers is particularly apposite. There, the respondent employer complained that the agency had violated procedural due process by basing its order on a ground not charged or litigated before it. The Court, in an opinion by Justice Brennan, held that the employer's failure to file a motion for reconsideration, as authorized by the agency's Rules, precluded it from asserting its objection to a reviewing court. The Court did not view the alleged ambush of the the employer, occasioned by a ruling on grounds not presented to the agency, as constituting "extraordinary circumstances" warranting a departure from the general rule barring presentation to the court of contentions not made before the agency. Garment Workers, supra, 420 U.S. at 281 n.3. In Garment Workers, the employer could not have made its argument to the agency before that body had issued its decision, because the basis for the argument--that the agency ruled on grounds which the employer had not had the opportunity to address--had not yet come into existence. It was thus the failure to move for reconsideration, standing alone, that precluded the employer from obtaining judicial review of its due process contention. Unlike the employer in Garment Workers, Goodman did have a previous opportunity to address the notice issue before the Commission. He failed either to do so or to petition for reconsideration. The logic of Garment Workers therefore applies, a fortiori, to the present case.
We recognize that Goodman is not an attorney, and that the niceties of agency procedure may not be easy to master for persons not trained in the law *fn24 (or even for those who are). As a result of Goodman's failure to present to the Commission his contentions as to the alleged lack of notice, however, we are simply left without a record adequate to enable us to address the question responsibly. Never having been asked to rule on the point, the Commission did not do so . We do not discern here the kind of manifest inJustice which would warrant either reversal of the agency's decision or a remand for further proceedings, where the request for such relief is predicated on a theory which the Commission has never had any occasion to address.
For the foregoing reasons, the decision of the Rental Housing Commission is hereby
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H.H. The Aga Khan on French Television - 2009-10-28Posted April 20th, 2010 by heritage
2009, October 28 - This wednesday TV program on France 3 - 20:35 Des Racines et des Ailes with special guest: H.H. The Aga Khan and Erik Orsenna. They are going to have more programs including one on Forodhani Parc and other projects of AKDN in Zanzibar. More on France 3
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2010, Janvier 07: Le nouvel Economiste
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2010, january 20: The Aga Khan University Hospital plans to set up a heart and cancer centre in Kenya by the end of the year. The centre, the first of its kind in the region, will provide medical treatment for heart ailments and cancers, the university's president, Mr Firoz Rasul, announced on Wednesday. This is only part of their expansion agenda, which Mr Rasul said, is expected to cost more than $700 million (Sh52.5 billion). Besides offering treatment, Mr Rasul said the centre would also train specialists in cardiac diseases and cancer.
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Aga Khan To Give Keynote at Pan-Africa Media Conference - 2010-03-18Posted April 20th, 2010 by heritage
2010, March 18-19:The Pan Africa media conference , in Nairobi, will bring together prominent personalities in media, business, governments, civil society, and academia across the world. Some of the 40 eminent guests lined up to grace the event include the Aga Khan, Nobel laureate Prof Wangari Maathai, former South Africa's president Thabo Mbeki, telecom investor Mo Ibrahim, and former UN secretary general Kofi Annan. The conference key theme is Reflections on the past, present, and prospects for the future. Thursday 18th March 2010 - 8.30 am - 9.45am - Opening Ceremony Programme - H.H.
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Portugal Issues Golden Jubilee Stamps - 2008-01-01Posted April 20th, 2010 by heritage
2007-2008: Portugal has issued stamps and first day cover to celebrate the Golden Jubilee of H.H. The Aga Kan. These are available from the Portugal Post up to 31st January 2008. [More to come]
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H.H. The Aga Khan's Message at the Death of Benazir Bhutto - 2008-01-07Posted April 20th, 2010 by heritage
2008, January 7: : ISLAMABAD: Prince Aga Khan has condoled with the Co-Chairman Pakistan Peoples Party, Senator Asif Ali Zardari over the death of his wife Mohtarma Benazir Bhutto Shaheed. His Highness Aga Khan in a condolence letter wrote, 'It was with immense sadness that I learnt that Mohtarma Benazir Bhutto had passed away in the most tragic circumstances. To you and your family, I express my deepest and most heartfelt condolences.
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H.H THE AGA KHAN IN AHMEDABAD - 2008-05-14Posted April 20th, 2010 by heritage
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2008, November 30: ISLAMABAD, Nov 30: Prince Karim Aga Khan, the spiritual leader of the Ismaili community, arrived in Islamabad and he will meet President Zardari and Chief of the Army Staff Gen Ashfaq Parvez Kayani. The president's spokesman, Mr Farhatullah Babar, told Dawn that 'the matter of regional security will also come under discussion' during the meeting between the Aga Khan and Mr Zardari on Monday. [More]
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2008, January 13: The Aga Khan - A Voice of Reason. The full version is available for purchase. [Click here] to order now. European Premiere in London on January 13, 2008! There was a screening at 6pm (semi-closed) and 8:30pm (open to the public) at a cinema in Central London.
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2008, May 16: H.H the Aga Khan was welcomed today at the Taj Residency Ummed in Ahmedabad. The Aga Khan is on a one-day visit to Gujarat state of Western India.
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2008, December: SINGAPORE VISIT - Mowlana Hazar Imam blessed the Jamat of Singapore with His Holy Deedar from December 1st to December 4th, 2008. More information
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MUSLIM UNIVERSITY TO BE ESTABLISHED BY AGA KHAN - 2008-01-24Posted April 20th, 2010 by heritage
2008, January 24: Muslim university to be established by Aga Khan - KARACHI, Pakistan (APP): A Muslim university would be established by the Aga Khan and the Ismaili community with a total investment of about $ 500 million, the president of the Aga Khan Ismaili Council, Iqbal Waljee, said in Karachi on Thursday. He said 1,000 acres of land has been acquired for the purpose on Super Highway in Karachi. The Aga Khan will lay the foundation stone, he said adding that acadamic activity will start from 2011. [More - Dawn]
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The Aga Khan in Dhaka - 2008-05-19Posted April 20th, 2010 by heritage
2008, May 19: Prince Aga Khan,arrives Dhaka today on a four-day state visit. Chief Adviser Fakhruddin Ahmed will receive him at Zia International airport. He will visit National Memorial at Savar and attend a state banquet at Hotel Sonargaon today. He will also host diplomatic reception and Imamat banquet at the same venue tomorrow. Prince Aga Khan will lay the foundation of the Aga Khan Academy at Basundhara tomorrow and the permanent Jamatkhana of the community on May 21. [Photos and News here!] Photos of H.H. The Aga Khan at the Pan Pacific Sonargaon Hotel in Dhaka, Bangladesh.
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H.H. The Aga Khan in Paris - 2008-12-08Posted April 20th, 2010 by heritage
2008, December 8 - 9: H.H. The Aga Khan attended A Mystical Journey: Musique Soufie et Autres Expressions de Dévotion en Islam at Thé
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AGA KHAN NOMINATED FOR 2008 CHATNAM HOUSE PRIZE - 2008-02-29Posted April 20th, 2010 by heritage
2008, February 29: His Highness the Aga Khan,One Of Four Nominees For 2008 Chatham House Prize.His Highness the Aga Khan, founder of the Aga Khan Development Network. Khan was nominated for his 50 years of work to 'improve the living conditions and opportunities for some of the poorest people in conflict-ridden countries regardless of their origin or religion.' [AHN]
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Prince Karim Aga Khan arrives in Dhaka - 2008-05-19Posted April 20th, 2010 by heritage
Dhaka, May 19: (bdnews24.com)
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INDIA: Textile Body Demands Reforms From Government
A leading Indian textile body said that the Government must put a package of reforms into place if it wants the industry to meet the targets set by the National Textile Policy. The Indian Spinners Association has called for several measures to be put in place, primarily a scheme to scrap old and obsolete spindles and looms. It pointed out that the Chinese Government is to spend $174m over three years in a bid to eliminate 10 million spindles. The body estimates that there are between 11 and 13 million out of date spindles in India.
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Jan. 26, 2013
Halsey Fowler was the second collegian in the mile, which led the Owls in the Howie Ryan Invitational at UH's Athletics/Alumni Center.
"We're still not 100 percent healthy, but I'm glad to have three weekends in a row where we competed," said Rice head coach Jim Bevan. "I was impressed by our efforts and we continue to have to work on some things and improve in other areas."
Fowler led the mile nearly wire-to-wire, but was outkicked at the finish, and finished second among the collegians in the race and third overall with a time of 4:52.51, as she attempts to recover from a long-term injury.
McKenzie Johnson was the highest-finishing collegian and second overall in the pole vault with a height of 3.95 m. She was the top-ranked collegian for the second time in three weeks, after winning the event at the Texas A&M 12-Team Invitational on Jan. 12.
Belle MacFarlane won the 800 m in the pentathlon, finishing ninth in her first pentathlon competition, with a time of 2:25.24. She finished 5th in the high jump, clearing a height of 1.60 m.
Imani Mark took an early lead in the 800 m run, but came out too aggressive and fell to 7th with a time of 2:18.01.
Claire Uke threw a 14.54 m in the shot put, finishing fourth as she came back from injury.
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October 31, 2012
INTERNATIONAL GROUP, LLC, PLAINTIFF,v.DANIEL PADILLA,*FN1 RICHARD WELKOWITZ, BLACKFORD DEVELOPMENT LTD., LAKE CITY MOB ASSOCIATES, LLC, SARNO ROAD ASSOCIATES, LLC, LAKE CITY MEDICAL ASSOCIATES, LLC, ABC CORPORATION, XYZ CORPORATION, DEFENDANTS.
This is a diversity action alleging claims under New York State law for conversion and slander of title. Now before the Court is Plaintiff's motion for leave to file a second amended complaint (Docket No. [#9]) and Defendant's cross-motion to dismiss and/or for summary judgment [#14]. Plaintiff's motion is denied, and Defendants' motion to dismiss is granted.
The following facts are taken from the Amended Complaint and proposed Second Amended Complaint, including any documents which are attached thereto, incorporated by reference, or integral to the pleading,*fn2 and are viewed in the light most favorable to Plaintiff. International Group, LLC ("Plaintiff") is a company that provided charter flight service on a private Gulfstream jet aircraft. The jet was owned by a separate corporation, International Group, Inc., which is not a party to this action, but which has assigned all of its rights concerning the subject incident to Plaintiff. In or about September 2010, defendant Daniel Padilla ("Padilla") and defendant Richard Welkowitz ("Welkowitz") embarked on a business venture, that involved Padilla traveling to the African nations of Mali and Benin to obtain gold to bring back to the United States. Welkowitz allegedly funded the venture, by paying approximately $6 million to persons in the nation of Benin, including Desire Vodonou ("Vodonou"), a member of the Benin Parliament, to process the necessary customs paperwork. In connection with this venture, Welkowitz 's company, Blackford Commodities Company LLC ("Blackford Commodities"), contracted with Padilla's company, Greystone Aviation, LLC ("Greystone").
The contract between Blackford Commodities and Greystone provided that Greystone would be responsible for transporting the gold from Africa to the U.S. via an unnamed "private charter plane." Greystone subsequently chartered Plaintiff's jet for the round trip to and from Africa. Apart from providing such transportation, Plaintiff had no involvement in the arrangement between Blackstone Commodities and Greystone.
In Africa, the venture unraveled when Padilla was arrested and imprisoned, along with Plaintiff's flight crew, on suspicion of fraud involving the gold transaction. Specifically, this occurred on or about December 23, 2010, in Benin, in the capital city of Cotonou. On January 4, 2011, Benin authorities impounded the jet , purportedly because they believed that it was owned by Padilla. In that regard, Padilla allegedly represented "to his local contacts" that he was the jet's owner. Several days later, Benin authorities released Plaintiff's crew, but not the jet. On January 31, 2011, Benin authorities determined that the jet should remain impounded as evidence, since it was used in the commission of a crime.
Shortly after the jet was impounded, Plaintiff's insurance company began efforts to obtain the release of the jet. In connection with those efforts, Plaintiff learned of the agreement between Blackford Commodities and Greystone, and of Welkowitz's ownership of Blackford Commodities. On February 11, 2011, Plaintiff's insurer advised Welkowitz's representatives that the jet was owned by Plaintiff, not Padilla, and that Welkowitz should not interfere with efforts to obtain the release of the jet.
On February 21, 2011, Plaintiff wrote to Welkowitz, and indicated that it considered him to be the "Principal" of the failed gold venture, and that it was looking to him for payment of its costs associated with the seizure of the jet, which it estimated at approximately $3 million. Welkowitz did not respond.
On or about February 24, 2011, Welkowitz, along with one of his African advisors, Nelson Mandela's grandson, Amuah Kweku Mandela, wrote to the President of Benin, who is apparently also the "Chief Magistrate" of Benin, and threatened to take legal action against Benin in "the highest international legal institutions," due to the handling of the fraud case against Padilla and Vodonou. The letter indicated that Welkowitz and Mandela, along with more than one hundred other people, were the victims of "a scam" by Vodonou and Padilla, and expressed "suprise and amazement" that Vodonou was not being prosecuted. In pertinent part, the letter also urged the President not to release the jet:
The private jet was seized by the courts and is currently detained on the tarmac of the airport . . . in Cotonou. If the private jet used to carry out the plan which is tangible evidence in the record were to be released while the arrests and prosecutions are still ongoing and the accused are not yet judged, the case would lose its value to our prejudice as would the release of [the] accomplices of Desire Vodonou[, . . . ] Daniel Padilla and Benjamin Gandonou who have confessed and are already in prison asking to be released.
Docket No. [#3-1] at pp. 5-6. According to Plaintiff, this letter "knowingly and fraudulently lied about the ownership of the aircraft and the fact that the flight was not operated as a private flight but instead was operated as a non-scheduled commercial charter under plaintiff's US Air Carrier Certificate." Amended Complaint ¶ 30. The Court, though, sees no such representations in the letter.
On February 25, 2011, a Beninese court ordered that the jet be released. However, Welkowitz appealed that order, as a result of which, the jet remained impounded pending appeal. Amended Complaint ¶ 32.*fn3 The Amended Complaint contends that in the appeal, Welkowitz "again lied about the ownership of the aircraft and the nature of the charter, whether commercial or private," meaning that he lied both in the prior letter and in the appeal. Id. (emphasis added). The document which Plaintiff identifies as this "appeal" is contained in the record at Docket No. [#16-2] at pp. 3-6, Marchionda Aff., Ex. E. This exhibit is incorporated by reference into the Complaint, and the Court therefor may consider it in ruling on a 12(b)(6) motion. In that regard, the exhibit consists of three documents, in the following order: 1) a one-page notice, in French, dated February 28, 2011, by the Chief Clerk of the Court of Appeal of Cotonou; 2) an English translation of an Order, dated February 25, 2011, from a Magistrate of the Court of Appeal of Cotonou, releasing the jet to Plaintiff; and 3) an English translation of the first document, which merely indicates that an appeal has been filed. Notably, this "appeal" contains no statements about the ownership of the jet, nor does it indicate whether the jet flight was commercial or private. More importantly, none of the appeal documents was authored by Welkowitz.
In any event, due to the appeal, the jet remained impounded. Plaintiff's insurer then had negotiations with Welkowitz, in which Welkowitz indicated that he would withdraw his appeal if Plaintiff would withdraw the claim for charter costs and expenses that was set forth in Plaintiff's letter dated February 21, 2011. Regarding this offer by Welkowtiz, Plaintiff contends that , "[s]aid statements by defendant Welkowitz interfered with Plaintiff's possessory rights and falsely cast doubts on the validity of Plaintiff's possessory rights with respect to said aircraft." Proposed Second Amended Complaint ¶ 37. The Court, though, sees no factual basis for that conclusory statement. In any event, Plaintiff did not accept Welkowitz's offer. Nevertheless, on March 17, 2011, Welkowitz withdrew the appeal, and on March 23, 2011, Beninese authorities released the jet to Plaintiff. However, because of the length of time that the jet had been sitting without maintenance being performed, it was deemed un-flightworthy by U.S. federal aviation officials, which ultimately contributed to the demise of Plaintiff's business.
On December 21, 2011, Plaintiff commenced this action, asserting two causes of action under New York law: conversion and slander of title. On January 27, 2012, Plaintiff filed an Amended Complaint, asserting the same claims, and seeking approximately $5 million in damages. Plaintiff subsequently served all Defendants except Padilla. On March 29, 2012, Plaintiff filed the subject motion [#9] for leave to file a Second Amended Complaint. In that regard, Plaintiff states that "the proposed pleading omits a number of corporate defendants, expands certain factual allegations, and more specifically identifies Plaintiff's causes of action. It is respectfully submitted that the balance of the changes are stylistic." Witkowicz Aff. [#9] at ¶ 7. The proposed pleading still purports to state claims for conversion and slander of title. Specifically, Plaintiff alleged that Defendants "converted by wrongfully detaining the subject aircraft from Plaintiff's use and operation," and that they "uttered injurious falsehoods and slandered Plaintiff's title with respect to the subject aircraft." Proposed Second Amended Complaint ¶ ¶ 48-49.
On June 8, 2012, Defendants opposed the motion to amend and filed the subject cross-motion [#14] to dismiss for failure to state claim, with prejudice. The application further asks the Court to convert the motion to one for summary judgment, to enforce a subpoena seeking production of a settlement agreement between Plaintiff and its insurer, and to dismiss the action for failure to join the jet's owner as a necessary party, or in the alternative, to join the owner as a party.
On October 18, 2012, counsel for the parties appeared before the undersigned for oral argument. At that time, Plaintiff's counsel argued, inter alia, that Defendants' actions in seeking the continued impoundment of the jet were tortious, because Welkowitz knew that Plaintiff owned the jet, and he had "no superior right" to detain the jet.
Defendants' Request to Treat the Motion as one for Summary Judgment Defendants ask the Court to convert their 12(b)(6) motion to one for summary judgment, and to consider matters outside of the pleadings. However, such request is denied as premature, since Plaintiff has not had any opportunity to conduct discovery. See, Young v. Benjamin Dev. Inc., 395 Fed.Appx. 721, 722-723, 2010 WL 3860498 at *1 (2d Cir. Oct. 5, 2010) ("Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.") (quoting Hellstrom v. U.S. Dep't of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000)). In any event, as discussed further below, it is not necessary for the Court to consider matters outside the pleadings in order to deny the motion to amend and dismiss this action.
Plaintiff's Motion to Amend and Defendants' Motion to Dismiss Courts must freely give leave to amend pleadings "when justice so requires." FRCP 15(a)(2). Nevertheless, "a district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir.2009) (citation and internal quotation marks omitted). "A proposed amendment to a pleading would be futile if it could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Martin v. Dickson, No. 03-7917, 100 Fed.Appx. 14, 16, 2004 WL 1205185 at *2 (2d Cir. Jun. 2, 2004) (unpublished, citation omitted).
Defendants essentially oppose Plaintiff's motion to amend as futile, and have moved to dismiss under Rule 12(b)(6). The applicable standard for such a motion is clear:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964--65, 167 L.Ed.2d 929 (2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007 ) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.' ") (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted).
When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999), cert. den. 531 U.S. 1052, 121 S.Ct. 657 (2000). Significantly, "[h]owever, there is a narrow exception to this rule for factual assertions that are contradicted by the complaint itself, by documents upon which the pleadings rely, or by facts of which the court may take judicial notice." Perry v. NYSARC, Inc., No. 10--5177--CV, 424 Fed.Appx. 23, 25, 2011 WL 2117950 at *2 (2d Cir. May 27, 2011).
The Pleadings Do Not Plausibly State a Claim for Conversion Plaintiff maintains that Defendants committed conversion under the law of New York State, and the elements of such a claim are clear:
To state a claim for conversion under New York law, a plaintiff must show that "someone, intentionally and without authority, assume[d] or exercise[d] control over personal property belonging to someone else, interfering with that person's right of possession." Colavito v. N.Y. Organ Donor Network, Inc., 8 N.Y.3d 43, 49--50, 827 N.Y.S.2d 96, 860 N.E.2d 713 (2006) (citation omitted). Put in other terms, a plaintiff must show (1) a "possessory right or interest in the property and (2) defendant's dominion over the property or interference with it, in derogation of plaintiff's rights." Id. at 50, 827 N.Y.S.2d 96, 860 N.E.2d 713 (citations omitted). Interference with a plaintiff's right to possession may be "by a wrongful: (I) taking; (ii) detention; or (iii) disposal." Corporacion Fruticola De Chincha v. Watermelon Depot, Inc., 2008 WL 2986276, at *4 (S.D.N.Y. July 31, 2008) (citing Pierpoint v. Hoyt, 260 N.Y. 26, 29, 182 N.E. 235 (1932)). "Some affirmative act-asportation by the defendant or another person, denial of access to the rightful owner or assertion to the owner of a claim on the goods, sale or other commercial exploitation of the goods by the defendant-has always been an element of conversion." State v. Seventh Regiment Fund, Inc., 98 N.Y.2d 249, 260, 746 N.Y.S.2d 637, 774 N.E.2d 702 (2002) (citations omitted).
Amusement Indus., Inc. v. Midland Ave. Assocs., LLC, 820 F.Supp.2d 510, 534 (S.D.N.Y. 2011). "[T]he act of interference may leave the goods physically undisturbed, yet still impair the owner's rights. Courts that state that manual taking is unnecessary do so in order to protect the rights of owners distressed by real, yet intangible, transgressions." State of New York v. Seventh Regiment Fund, 98 N.Y.2d at 260. "Wrongful intent is not an element of conversion." Homkow v. Musika Records, Inc., No. 04 Civ. 3587(KMW)(THK), 2009 WL 721732 at *12 (S.D.N.Y. Mar. 18, 2009) (citations omitted). Moreover, a person will be liable for conversion where he uses a third party to interfere with the plaintiff's right of possession. See, Goldstein v. Guida, 74 A.D.3d 1143, 904 N.Y.S.2d 117, 118-119 (2d Dept. 2010) (Defendant committed conversion where he hired a third party to remove chairs from the plaintiff's home and deliver them to his upholstery shop, and then denied having received the chairs).
In this action, of course, Defendants did not detain the jet in the first instance, either directly or indirectly. Rather, the Government of Benin detained the jet because it appeared that the jet was used in the commission of a crime. In fact, there does not appear to be any dispute that the jet was used in the commission of a crime, although without Plaintiff's knowledge. However, once the Beninese Court decided to release the jet, Defendant Welkowitz directed that an appeal be filed, which resulted in the continued impounding of the jet.*fn4 Welkowitz maintains that he appealed the decision because he was hoping that if the jet was forfeited as part of the criminal action, he could recoup some of the money that Padilla stole from him. Plaintiff, on the other hand, contends that Welkowitz only filed the appeal in order to gain a bargaining chip, with which he hoped to persuade Plaintiff to agree to release any claims that it might have against him. In the Court's view, though, Welkowitz's subjective motivation is irrelevant, since the appeal was not tortious in any event.
The alleged conversion occurred, according to Plaintiff, when Welkowitz convinced a third-party court to continue detaining Plaintiff's jet, even though Welkowitz did not presently have any legally recognizable interest in the property. In that regard, Welkowitz's action was most analogous to the situation in which one seeks the judicial attachment of property, prior to any judgment being rendered, in order to preserve the property.*fn5
New York caselaw indicates that wrongfully attaching property, through a court proceeding, may be actionable as conversion. See, e.g., Day v. Bach, 87 N.Y. 56, 1881 WL 13044 (1881); Banken v. Albert, 25 A.D.2d 184, 268 N.Y.S.2d 36 (1st Dept. 1966); Siegel v. Northern Blvd. & 80th St. Corp., 31 A.D.2d 182, 187, 295 N.Y.S.2d 804, 811 (1st Dept. 1968) ("The second cause of action seeks recovery for injury caused by wrongful attachment. For such an injury the remedy is an action in conversion or trespass."). However, the party who obtains attachment of the plaintiff's property will only be liable for conversion where the attachment was procedurally defective, and therefore void or voidable. See, Banken v. Albert, 268 N.Y.S.2d at 37-38 ("Plaintiff's contention that the mere filing of an attachment, subsequently vacated, automatically subjects the party who sued out the writ to tort liability as for trespass or conversion, is incorrect. Such a tort action lies only where the attachment was procedurally defective Ab initio and therefore void or voidable.") (citations omitted). Otherwise, the party who obtained the attachment is shielded from tort liability by the court's issuance of the attachment. See, Day v. Bach, 1881 W.L. 13044 at *3 ("That cannot be a trespass at the time, which is done by the authority of regular process, duly issued by a court having jurisdiction."); Bornstein v. Levine, 7 A.D.2d 843, 843, 181 N.Y.S.2d 653 (1st Dept. 1959) ("[T]he party having first obtained judicial approval, an action in the nature of trespass does not lie.").
Here, the jet was retained pursuant to an order of the Benin Court. Plaintiff has not alleged that Welkowitz's appeal was procedurally defective under the law of Benin. Nor has Plaintiff otherwise shown that it was improper for Welkowitz to petition the Benin Government to retain the jet pending the outcome of the criminal investigation. At most, Plaintiff indicates that at the time, it had assured Welkowitz and the Beninese Government that neither it nor the jet was involved in Padilla's alleged wrongdoing. The Benin Court eventually agreed with Plaintiff, and ordered that the jet be released, but Welkowitz was apparently entitled by Benin law to appeal the court's determination on that point. Accordingly, Plaintiff has not plausibly stated a claim for conversion.
Nonetheless, Plaintiff argues that as part of Welkowitz's appeal, he made false claims about the ownership of the jet. See, Bright View Trading Co., Inc. v. Park, No. 03 Civ. 2330 (HB), 2004 WL 2071976 at *9 (S.D.N.Y. Sep. 16, 2004) ("[A] conversion claim may lie based solely on [defendant's] alleged misrepresentations in his application for an order of attachment."). However, in light of the documents attached to the Complaint, such conclusory statement is not plausible. In fact, at oral argument, the Court asked Plaintiff's counsel to identify where in the appeal Welkowitz made such misstatements, and he could not do so. As shown by the letter that Welkowitz sent to Benin's President, he did not claim that he owned the jet or had the right to possess it. Instead, he indicated that he was the victim of a criminal scam, and that he would be harmed if the jet were released. Specifically, Welkowitz (and Mandela) stated:
If the private jet used to carry out the plan which is tangible evidence in the record were to be released while the arrests and prosecutions are still ongoing and the accused are not yet judged, the case would lose its value to our prejudice[.]
Docket No. [#3-1] at pp. 5-6.*fn6 Plaintiff nevertheless alleges that in Welkowitz's appeal to the Benin Court, he "again misrepresented the ownership of the aircraft and the nature of the charter," just as he had in his letter to Benin's President. Proposed Second Amended Complaint at ¶ 33 (emphasis added). However, since the initial letter contained no such misrepresentations, Plaintiff's contention that the appeal contained similar misrepresentations is not plausible.*fn7 Moreover, no such misstatement is contained in the actual appeal documents before the Court. Consequently, Plaintiff's contentions are mere conclusions that are not supported by factual allegations.
Therefore, the Amended Complaint and Proposed Second Amended Complaint fail to state claims for conversion, and the motion to amend should be denied as futile with regard to such claim.
The Pleadings Do Not Plausibly State a Claim for Slander of Title Plaintiff's second cause of action is for "slander of title" under New York law, and the elements of such a claim are clear: "The elements of slander of title are (1) a communication falsely casting doubt on the validity of complainant's title, (2) reasonably calculated to cause harm, and (3) resulting in special damages." Fink v. Shawangunk Convervancy, Inc., 15 A.D.3d 754, 756, 790 N.Y.S.2d 249, 251 (3d Dept. 2005). Moreover, the false statements must be made with at least a "reckless disregard for their truth or falsity." Id. Furthermore, the false communication must render the plaintiff's title "unmarketable in the legal sense" or "tend to cast doubt on the validity of" such title. Hirschhorn v. Town of Harrison, 210 A.D.2d 587, 619 N.Y.S.2d 810 (3d Dept. 1994).
In this action, for the reasons discussed above, the Court finds that Plaintiff has not pleaded facts sufficient to plausibly state a claim for slander of title. In that regard, neither the Amended Complaint nor the Proposed Second Amended Complaint plausibly suggests that Welkowitz or any other Defendant made any communications concerning the ownership of the jet or the validity of Plaintiff's title to the jet. Accordingly, Plaintiff's application to amend that claim is denied for futility, and the claim is dismissed.
Plaintiff's motion to amend [#9] is denied, and Defendants' cross-motion [#14] to dismiss with prejudice is granted. The alternative relief requested by Defendants is denied as moot. The Clerk of the Court is directed to close this action.
Charles J. Siragusa
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