IN RE: PEOPLE of the State of New York BY Letitia JAMES (2021)

Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about December 9, 2019, which, to the extent appealed from, permanently enjoined respondent Lydia Pugsley individually from violating Executive Law § 63(12) and General Business Law (GBL) §§ 349 and 350 and from engaging in the fraudulent, deceptive, and illegal practices alleged in the verified petition and held her liable jointly and severally with the nonappealing respondents for monetary restitution, unanimously affirmed, without costs.

This Court's prior holding that petitioner was entitled to judgment as a matter of law against respondent Pugsley individually (Matter of People v. Orbital Publ. Group, Inc., 169 A.D.3d 564, 566, 95 N.Y.S.3d 28 [1st Dept. 2019] [Orbital I]) is law of the case on the issue of Pugsley's individual liability (Board of Mgrs. of the Charles St. Condominium v. Seligson, 106 A.D.3d 130, 135, 961 N.Y.S.2d 152 [1st Dept. 2013]).  Pugsley has pointed to no new evidence or other factor warranting deviation from this holding (see id.).  Pugsley's due process argument is unpreserved and in any event without merit.

Pugsley's argument that the judgment violates the Excessive Fines Clause of the Eighth Amendment is unpreserved (see Matter of Sahara Constr. Corp. v. New York City Off. of Admin. Trials & Hearings, 185 A.D.3d 401, 402, 127 N.Y.S.3d 453 [1st Dept. 2020]) and in any event unavailing.  The Excessive Fines Clause does not apply to the restitution portion of the monetary judgment (see Browning–Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 [1989];  United States Commodity Futures Trading Commn. v. Escobio, 833 Fed. Appx. 768, 773 [11th Cir.2020]).  The penalty portion passes constitutional muster because the penalties imposed are well within statutory limits (see Newell Recycling Co., Inc. v. United States Envtl. Protection Agency, 231 F.3d 204, 210 [5th Cir.2000], cert denied 534 U.S. 813, 122 S.Ct. 37, 151 L.Ed.2d 11 [2001];  Qwest Corp. v. Minnesota Pub. Util. Commn., 427 F.3d 1061, 1069 [8th Cir.2005]).  Nor is the total amount of the monetary judgment “grossly disproportional” to the offense (Matter of Prince v. City of New York, 108 A.D.3d 114, 121, 966 N.Y.S.2d 16 [1st Dept. 2013]).  Pugsley was at the heart of a years'-long scheme that deceptively wrested tens of millions of dollars from consumers across the country, including tens of thousands of New Yorkers.  The total monetary judgment, while significant, is commensurate with the offense.

The amount of restitution was determined by calculations and extrapolations that were reasonably certain and reliable and reasonable under the circumstances (see Tobin v. Union News Co., 18 A.D.2d 243, 245, 239 N.Y.S.2d 22 [4th Dept. 1963], affd 13 N.Y.2d 1155, 247 N.Y.S.2d 385, 196 N.E.2d 735 [1964]).

Supreme Court providently exercised its discretion in awarding the statutory allowance of $2,000 for each of the 11 appearing respondents and holding Pugsley individually liable for the aggregate sum (see CPLR 8303[a][6]).

We have considered Pugsley's remaining contentions and find them unavailing.