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PEOPLE v. MERKIN

Index No. 450879/09. Appeal No. 13939-13939A. Case No. 2020-03513.

194 A.D.3d 657 (2021)

2021 NY Slip Op 03389

The People of the State of New York, Plaintiff, v. J. Ezra Merkin et al., Defendants, Ascot Partners, L.P., Respondent, and Geraldine Fabrikant et al., Appellants, et al., Relief Defendants.

Appellate Division of the Supreme Court of New York, First Department.

Decided May 27, 2021.

Attorney(s) appearing for the Case

Kramer Levin Naftalis & Frankel LLP, New York ( Arthur H. Aufses III of counsel), for Geraldine Fabrikant, appellant.

Orloff, Lowenbach, Stifelman & Siegel, P.A., New York ( Laurence B. Orloff , of counsel), for Sandalwood Debt Fund A, L.P., Sandalwood Debt Fund B, L.P. and Hudson Investment Partners, L.P., appellants.

Norton Rose Fulbright US LLP, New York ( Judith A. Archer , of counsel), for respondent.

Concur—Gische, J.P., Kern, Oing, Shulman, JJ.

In 2009, Ascot was placed into an equitable receivership to pursue recovery on behalf of its investors of funds stolen by Bernard L. Madoff Investment Securities (BLMIS). After marshalling limited funds to distribute to investors, the receiver submitted a proposed plan of distribution using the Net Investment Value (NIV), which adopted a "cash in/cash out" approach, taking into account any "collateral recoveries" the investor might have received, to calculate a pro rata percentage...

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