Tish James’ Dubious Win

After test driving that cool new Toyota Corolla, you ask the salesperson at the dealer ship “what’s the best price you can do?” He tells you he has to talk to his manager, then returns with a price written on a piece of paper and tells you, “That’s the best deal we have, and it’s only good if you buy it now.” He’s lying to you, of course. You know it. He knows it. Then the negotiating begins and maybe you buy or maybe you walk, but the one thing you know with absolute certainty is that it’s neither the best he can do nor a deal that disappears if you don’t take it.

That’s the way the business is conducted, over and over, and everybody knows it. Yet, it violates New York Executive Law § 63(12).

Whenever any person shall engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business, the attorney general may apply, in the name of the people of the state of New York, to the supreme court of the state of New York, on notice of five days, for an order enjoining the continuance of such business activity or of any fraudulent or illegal acts, directing restitution and damages and, in an appropriate case, cancelling any certificate filed under and by virtue of the provisions of section four hundred forty of the former penal law or section one hundred thirty of the general business law, and the court may award the relief applied for or so much thereof as it may deem proper. The word “fraud” or “fraudulent” as used herein shall include any device, scheme or artifice to defraud and any deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual provisions. The term “persistent fraud” or “illegality” as used herein shall include continuance or carrying on of any fraudulent or illegal act or conduct. The term “repeated” as used herein shall include repetition of any separate and distinct fraudulent or illegal act, or conduct which affects more than one person. Notwithstanding any law to the contrary, all monies recovered or obtained under this subdivision by a state agency or state official or employee acting in their official capacity shall be subject to subdivision eleven of section four of the state finance law.

Does the attorney general sue every (any?) car dealership? Hardly. Not because it’s not in violation of this breathtakingly broad law, but because it’s not really fraud, even though it’s certainly deception and misrepresentation, because everybody knows the game and agrees to play it. Is overstating the value of assets in application for loans where the banks also have a duty of due diligence and the opportunity for appraisal all that different? Is doing so when there were no damages, where the loans were paid and no big bank was harmed and the worst of it was advantageous rates that, like the price of a car, were a matter of negotiation, a violation of Executive Law § 63(12)?

Maybe it is a violation and the AG just doesn’t act against nearly enough businesses that employ schemes to defraud, most of which do far greater damage, but that should have been left to a jury to decide. In People v. Trump, Tish James moved for summary judgment on the issue of culpability and got it good and hard from Justice Arthur Engoron.

Summary judgment means that there is no material issue of fact in dispute, such that there is no reason to put evidence to a jury to find facts as there’s nothing left to find. And, indeed, there really isn’t any doubt that Trump and his people grossly, to the point of laughably, overstated the value of assets.

Exacerbating defendants’ obstreperous conduct is their continued reliance on bogus arguments, in papers and oral argument. In defendants’ world: rent regulated apartments are worth the same as unregulated apartments; restricted land is worth the same as unrestricted land; restrictions can evaporate into thin air; a disclaimer by one party casting responsibility on another party exonerates the other party’s lies; the Attorney General of the State of New York does not have capacity to sue or standing to sue (never mind all those cases where the Attorney General has sued successfully) under a statute expressly designed to provide that right; all illegal acts are untimely if they stem from one untimely act; and square footage subjective.

That is a fantasy world, not the real world.

He’s not wrong. But being “not wrong” isn’t necessarily the same as being right. Even with Trump’s fantastical lies and ridiculous rationalizations for why his lies aren’t really lie-ish, there remains a question of whether this deceit was material to any transaction or just the way the game is played, albeit an extreme version, and anticipated by the sophisticated party on the other side of the deal who would be just as likely to deceive for its own benefit by producing undervalue appraisals if it suited their business needs.

By granting summary judgment, the only question remaining in the trial court is sanctions, which will be left to the judge to impose. But the one thing that will assuredly happen is that Trump will appeal. He will seek a stay of execution and appeal the summary judgment, which the Appellate Division will review de novo, since it wasn’t a jury verdict but only one judge’s opinion. Maybe it will uphold the ruling if no material issue of fact can be found, but maybe not. A judge’s summary judgment ruling is never as bulletproof as a jury’s verdict based upon its determination of credibility of witnesses that testified before it.

While not so much a legal consideration, there remains a special concern that derives from this being Trump. A trial, with the testimony of witnesses being reported and parsed within an inch of its life, would serve the public best to establish that these were lies, knowing and deliberate lies, from a man whose entire persona is built on lies. At least for some, seeing it happen before them might make it clear who he is and what he does. Instead, they will only have the word of that New York Democrat judge who Trump calls “deranged” and hates him. This was an opportunity lost.

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