Dictated, but Not Read

December 2

Mrs. Janeanne Sandler
1381 Linden Blvd.
Apt. # 6C
Brocklyn, New York 11212

Re: Pennywise Savings Bank v. Sandler

Dear Mrs. Sandler,

I write with regard to the decision in your case with the Pennywise Savings Bank in the New York State Supreme Court, County of Kings. I wish I had better news, but Judge Hoffmann has ruled against us, granting the Bank’s motion for summary judgment against you (and deriding my firm in the process).

In short, the Court found that the Bank is entitled to judgment despite our argument (which I stressed in our papers) of “absence of contributory negligence” on your part and your reliance on the Bank’s acts to your detriment. It was in the introductory synopsis of the decision that Judge Hoffmann took an unprovoked swipe at my firm, writing, “Evidently, the law firm that represents the defendant, which has embarked upon unprecedented widespread television solicitation of clients, sought to create the novel and innovative doctrine of ‘windfall by estoppel.’”

There is nothing unethical or even unseemly about television advertising. Although historically law firms have not advertised on television, there is no per se proscription of such communication to the public. The only advice given on the subject is that contained in the New York State Lawyer’s Code of Professional Responsibility, which expressly permits an attorney to advertise “so long as the advertising is not false, deceptive, or misleading, and does not contain puffery, self-laudation, or claims regarding the quality of the lawyer’s legal services or claims that cannot be measured or verified.” I predict that before the decade is out, the majority of law firms will be advertising on television.

Nor was our argument that you were the victim under the circumstances frivolous or even as far-fetched as Judge Hoffmann would seem to think. When an unemployed woman who receives a public assistance check of $92 every two weeks and who regularly plays the State lottery and enters other contests seeking to improve her situation finds that the amount of $23,715 has been deposited into her checking account, it is hardly implausible, let alone impossible, for her to believe that the money had been deposited by the sponsor of one of the contests she had entered. That we could supply no details regarding any such contest or its sponsor or how the sponsor would have known the name of your bank and your account number should not have been dispositive of the matter. You and I both know that contest sponsors are wily and they like to surprise their winners!

Judge Hoffmann’s finding that the pattern of withdrawals from your account “belies the defendant’s pretensions of innocence” might be considered slanderous were the Judge not immunized against such charges. The “pattern” of which His Honor wrote apparently began with your writing check #123 in the amount of $30.80 on December 17, 1979, against the sum of $30.95, which would have left you with a balance of fifteen cents. Three other checks were presented on the account thereafter in the amounts of $10, $20, and $30, respectively, which, but for the mistaken credit given on December 13 would have left your account overdrawn in the sum of $63.59. The January 2, 1980, statement issued by the bank to you showed that you had $5.41 in your savings account and $23,655.15 in your checking account.

One would be hard-pressed to find fault in your proceeding to write checks totaling $6,323.60 in the next few days, following what you believed was a stroke of good luck. And your writing check #163 for $75,000, check #165 for $4,000, check #166 for $20,000, and check #169 for another $20,000 was fully in keeping with your expectation that your contest winnings were being deposited into your account in installments. Of course, since at this point your account showed a balance of only $17,331.55, only the $4,000 check was debited, with the other $115,000 in checks being returned.

At least Judge Hoffmann acknowledged in his decision that “[e]ven this did not alert the bank, however,” nor did the fact that check #163 for $75,000 was re-presented for negotiation in February and bounced again. It was, as you recall we pointed out to the Court, not until March 4, 1980, that the Bank became aware of its mistake--i.e., “inadvertently” crediting your account back in December with monies intended for the Banco de Chile, whose account number is allegedly similar to one of yours--and transferred the remaining balance of $13,269.55 out of your account (and then sued for $10,445.45 for checks that were “improperly” paid out). But the Judge unfortunately and unfairly declined to hold the Bank responsible for its error and the foreseeable consequences thereof.

The Court apparently was not persuaded by our argument that the absence of any contributory negligence on your part should relieve you of any liability. Judge Hoffmann wrote (with a surfeit of prolixity, in this attorney’s opinion) that it is “of no moment that plaintiff may have made a mistake, and through its negligence gave access to sums which the defendant was able to convert to her benefit. Conversion is a willful tort, and the fact that defendant acted deliberately rather than negligently is not a defense.” Nonetheless I think it was a good idea. Had it been effective, I would no doubt publish a scholarly article on the brainstorm that had produced it.

The Court noted that “while the bank might have been careless, it is nonetheless entitled to be relieved from the consequences of its mistake,” citing decisions in very old prior cases that I believe to be irrelevant, non-precedential, or both. In fact, Judge Hoffmann seems to acknowledge that the law is not on the Bank’s side in this case when he writes, “An action for money had and received as well as an action to recover money paid under a mistake of fact, although actions at law, are based on equitable principles....” (emphasis supplied). Every lawyer knows that equity is invoked when a judge can’t use the law to help the side he wants to win.

Perhaps even more disappointing, however, is the unsuccessfulness of our assertion of your reliance on the Bank’s negligence to your (obvious) detriment. Judge Hoffmann, writing with sarcasm unbecoming a jurist, opined, “That reliance consisted of writing checks in excess of $125,000, some of which she was able to distribute to her relatives. Some detriment!” Because, in the Court’s narrow view, the Bank did not attempt to mislead you, make knowing misrepresentations to you, or defraud you, you have no valid legal or factual defense, and the Court “cannot condone the unjust enrichment of the defendant.” Were I a more cynical practitioner, I might wonder if the judge wasn’t unjustly enriched by the Bank somehow during the pendency of the motion.

That said, I do not believe that an appeal of Judge Hoffmann’s ruling would be fruitful, as much as I would like to have His Honor reversed and his comments expunged from the public record. (As it is, Mr. Kerby and I might be asking that the decision not be published and the file sealed.) Under the circumstances, therefore, your representation by my firm is now at an end.

With all best wishes for a Merry Christmas and a happy new year, I remain,

Very truly yours,

Jacob M. Hayes, Esq.

Dictated but not read.

JMH/cf

cc: Hon. Benjamin F. Hoffmann

p.s.: For information purposes only, I calculated what my firm would have charged you for our work on your behalf in this matter had we not agreed to represent you for free. The total came to $31,693. Should you wish to take an itemized deduction for legal fees paid on your tax returns, I will provide a receipt for your use.