Are We There Yet?
A brief excerpt from Part 20(!) of attorney Cory Friedman’s as-always superb analysis of what’s going on in Justice Cahn’s court:
Do we have a date for the Deed of Gift (DOG) Match? No. A simple cruise around the buoys has turned into an epic 18th century winter rounding of the Horn. Now that it is clear that there will be a DOG Match between Societe Nautique de Geneve (SNG) and Golden Gate Yacht Club (GGYC) before there is another conventional multi-challenger monohull event, just about everyone in the sailing community would like to see the DOG Match sailed as soon as possible. GGYC has said so. Grant Dalton has said so. Vincenzo Onorato has said so. Professional sailors in career holding patterns have said so. ‘Buttheads have said so.
Before we can get there, Justice Cahn has to set a date for the DOG Match, which was the purpose of the April 2, 2008 hearing. After listening to the parties, Justice Cahn was left in irons, unable to set a date and had to hold off until he can figure the date out on his own. GGYC stuck to its previous rationale for an October 2008 Match. That pegs the Match to 10 months after Justice Cahn’s November 27, 2007 opinion granting summary judgment to GGYC and DSQing CNEV. (GGYC continues to implicitly concede that a toll was in effect despite the fact that SNG rejected a toll. See Episode 19 of this saga.) The fundamental problem with that argument is that an order has yet to be entered on the summary judgment motions Justice Cahn decided on November 27, 2007.
In NY State practice, opinions do not count, except as education for lawyers and precedent. In a given case, only orders count. Only orders are legally operative and can be appealed. Thus, GGYC is trying to base the beginning of a 10 month period on something that in NY State practice does not matter. GGYC argues that SNG should have know that the jig was up on November 27, 2007, should have started building its boat and cannot benefit from all the motion practice that prevented entry of an order or the motions that were not decided until March 17, 2008. GGYC argues that, although SNG was entitled to proceed as it did, it somehow cannot benefit from the delay GGYC concedes it was entitled to cause.
If you are having difficulty following that argument, you know why Justice Cahn did not set a date. Penalizing a party for something it was entitled to do is a major stretch. If a toll was in effect, SNG is entitled to 10 months from an order. It ain’t over ’til it’s over and it ain’t over ’til an order is entered. If SNG sailed to the edge, but not over the edge, in order to delay entry of an order, good for its lawyers - they earned their fee. Calling permitted conduct wrongdoing does not make it wrongdoing. It is the same as coming up under another boat at the start, hailing leeward, and without contact forcing it OCS. It may earn you hard feelings in the fleet, but you cannot be DSQed.
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