The New York Law Journal by Joel Stashenko May 17, 2010
A Niece of Tom Carvel, the pioneer of soft ice cream who died almost 20 years ago, should be barred from filing further suits against the Carvel estate in the Southern District of New York without prior judicial approval, a magistrate judge has recommended. Any “rational litigant” in Ms. Carvel’s position would have come to realize that many of her claims against the estate are “legally meritless both because they have been rejected by numerous other courts and because they are grounded on provably false statements or omissions of fact by her,” Magistrate Judge Michael H. Dollinger held. “Her course of conduct has imposed extensive and entirely unjustified burdens on the targets of her campaign, and has equally saddled the courts with a healthy crop of frivolous litigation,” he wrote in Thomas and Agnes Carvel Foundation v. Pamela Carvel and the Carvel Foundation Inc., 09 Civ. 5083. Ms. Carvel should be required to receive prior judicial approval before filing further claims in the Southern District involving the trust established by Thomas and Agnes Carvel or against a foundation that has controlled their assets since their deaths, the magistrate judge said in a report and recommendations to Southern District Judge Jed S. Rakoff. Ms. Carvel should also be penalized, but Magistrate Judge Dolinger said her financial resources are unclear from the record. Penalties against pro se litigants should be meted out after their ability to pay has been determined, he said.
The magistrate judge said in appeared is “inappropriate and unnecessary” to extend a Southern District injunctive order to state courts. Under In re Martin-Trigona, 737 F.2d 1263 (1993), the U.S. Court of Appeals for the Second Circuit ruled that a district court had erred in extending a blanket injunction against a plaintiff’s filing of actions to include state courts. Magistrate Judge Dolinger recommended the course adopted in Martin-Trigona, in which the plaintiff was required to append federal court injunctions to any future filings in state courts. In addition, the magistrate judge said it appears Ms. Carvel may already be barred from filing new actions in state courts related to the Carvel estate and trust. A temporary restraining order, apparently still in effect, was issued by the Westchester County Surrogate’s Court in late 2005 barring Ms. Carvel from “taking any action in another court” in the state in which she asserted control over the Carvel estate or assets. Violations of an injunctive order could bring sanctions and a contempt of court citation in the Southern District, Magistrate Judge Dolinger noted in a draft injunctive order. The Southern District case concerns the Carvel estate’s attempt to hold Ms. Carvel liable in New York for two judgments made by the High Court in London against Ms. Carvel based on her earlier attempts in England to gain control of Carvel family assets. The London court eventually blocked the effort and later awarded the Carvel estate £185,000 or about $276,000, in costs stemming from the litigation, plus interest. Magistrate Judge Dolinger rejected Ms. Carvel’s counterclaim that federal court in New York does not have jurisdiction because she lived in London or Delaware, not New York, and because the London rulings are not enforceable in New York. “Challenges to the merits of a foreign-court decision do not provided a basis under the New York stature or comity standards to justify denying recognition of a foreign judgment,” Magistrate Judge Dollinger wrote. As to whether Ms. Carvel lived for significant periods in New York, the magistrate judge ruled that even if she did not, the Southern District court has jurisdiction in the case by virtue of the fact that the Carvel estate was probated in Westchester County.
Tom Carvel, A Greek immigrant, became famous in the Northeast as he promoted the ice cream products he marketed under the Carvel name. He died in 1990, leaving his assets in trust to his wife, Agnes, with the proviso that the rest of his estate would go to a Thomas and Agnes Carvel Foundation upon her death. Their niece, Pamela, contends Agnes Carvel never saw money from the trust before her death in 1998 and that the Yonkers-based foundation has looted the Carvel estate with the help of local judges and lawyers. Ms. Carvel was once one of seven executors of the estate, but was removed as her dispute with the foundation escalated. She estimates that the Carvel estate was worth $250 million when Mr. Carvel died and $50 million or less today.
Ms. Carvel has commenced a flurry of court actions over the Carvel trust and foundation. Magistrate Judge Dolinger likened the litigation to a “vortex.” At various times, cases filed in state and federal court in New York, Delaware and Florida and in England have challenged in one way or another the disposition of Carvel assets since Mr. Carvel’s death. In one case, Carvel v. Cuomo, 1:07-cv-1034, Ms. Carvel failed to persuade Northern District Judge Lawrence E. Kahn that Attorney General Andrew M. Cuomo was obligated by state law to investigate the Carvel Foundation in his role as watchdog of charities in New York (NYLJ, July, 2008). Her claim of racketeering, fraud and conspiracy against Agnes Carvel’s one-time attorney in Carvel Estate ex rel. Carvel v. Ross, Civil Action 07-238 (D. Del 2007), was ultimately dismissed in Delaware, as was Carvel v. Ferncliff Cemetery, 07 Civ. 605 (S.D. Fla. 2007), which sought to exhume Thomas Carvel’s body for possible evidence of a homicide. In another case, Carvel v. State of New York, 08-4576-cv, Ms. Carvel claims lawyers and a surrogate have conspired to steal hundreds of millions from the Carvel fortune. The circuit threw out the claims against the state and the surrogate on immunity grounds, but remanded to Southern District Judge Shira Scheindlin one cause of action for conspiracy against private attorneys handling Carvel assets. Ms. Carvel has since filed an amended complaint in the case, seeking to expand the number of defendants.
In an interview Friday, Ms. Carvel alleged that Magistrate Judge Dolinger was accepting as fact statements made by her adversaries that she disputes. “This thing is horrendous,” she said. “To me, it is just a complete violation of my rights.” She contended that her suits have never been dismissed a frivolous, but “because I am pro se and I don’t know how to write for a federal court.” Ms. Carvel said she had asked Magistrate Judge Dolinger to extend a May 21 deadline for commenting on his repot and recommendations to June 10. She estimated the trust and foundation have spent more than $30 million in legal fees and other costs since Tom Carvel’s death “just to keep me silent.” She said she is seeking $!5 million in legal fees and expenses spent trying to recover trust money for her aunt and asserting her position as an executor of the Carvel estate. In his report, the magistrate judge said he knew of a least four cases now before district courts in New York or the Second Circuit and said they would not be affected by his recommendation. Kevin Stevens of Suffern and Joan Magoolaghan of Koob & Magoolaghan in Yonkers represented the Carvel Foundation. Both attorneys declined to comment. Joel Stashenko can be reached at firstname.lastname@example.org.