In the Matter of a Mail Dispute Between:

DANIEL M. VINNIK
and
LEE DAVID AUERBACH,
PAUL M. LEWITTES

P.S. Docket No. MD-22

Grant, Quentin E. Chief Administrative Law Judge

APPEARANCE FOR DANIEL M. VINNIK:
Michael J. Trainor, Esq.
Bleakley & Schmidt
123 Main Street
White Plains, NY 10601-3104

APPEARANCE FOR LEE DAVID AUERBACH
Joseph S. Plescia, Esq. and PAUL M. LEWITTES:
Auerbach, Lewittes & Plescia
11 Martine Avenue
White Plains, NY 10606-1908

INITIAL DECISION

This matter has been docketed pursuant to Domestic Mail Manual 153.72 which requires Regional Counsel to forward certain unresolved mail disputes to this department for decision. The disputants have filed written submittals and comments in accordance with 965.5 and 965.6 of the rules of practice. The following findings of fact are based on the record thus established.

FINDINGS OF FACT

1. Disputants Daniel M. Vinnik (Vinnik) and Lee David Auerbach (Auerbach) were partners in the law partnership of Vinnik & Auerbach (V&A) under a partnership agreement entered into January 1, 1984. At a later date disputant Paul M. Lewittes (Lewittes) joined them as a partner, the law firm's name then being changed to Vinnik, Auerbach & Lewittes (VA&L). The partnership, under both firm names, had offices and received mail at 170 Hamilton Avenue, White Plains, New York.

2. The partnership VA&L was dissolved as of September 30, 1987. Vinnik has continued to practice law under his name alone at the 170 Hamilton Avenue address. Auerbach, Lewittes and the three other attorneys associated with the partnership joined as partners, associates or "of counsel" in the firm of Auerbach Lewittes & Plescia (AL&P) with offices at 11 Martine Avenue, White Plains, New York.

3. Following the establishment of AL&P, an informal arrangement existed between Vinnik's office and AL&P which left control of mail addressed to VA&L with Vinnik. As Vinnik's mail was picked up daily by one of his staff members, a representative of AL&P would meet Vinnik's employee at the post office and the mail addressed to VA&L would be sorted, unopened, by name of the individual indicated on the envelope. All mail addressed to Vinnik Auerbach & Lewittes which was not directed to a particular individual was opened and the mail was then sorted by matter. This informal arrangement continued, according to Auerbach and Lewittes, until it became apparent that the volume of mail directed to VA&L had decreased substantially and it was no longer economically viable for Auerbach and Lewittes to continue this arrangement.

4. A new arrangement was agreed upon whereby Vinnik's office would receive the mail addressed to VA&L, would sort the mail in the same manner as it had been sorted between representatives of each firm at the post office, and would forward to AL&P all mail determined to belong to an individual associated with AL&P. This arrangement worked satisfactorily until early March 1988 when AL&P complained to Vinnik in a letter dated March 1 that several items of mail clearly addressed to persons in AL&P had been opened by Vinnik's office before forwarding to AL&P.

5. Disagreement about the opening of mail by Vinnik resulted in the initiation of this mail dispute by letters dated March 10, 1988, to the White Plains Postmaster, wherein AL&P requested the delivery of all mail addressed to V&A and VA&L to them at 11 Martine Avenue, White Plains, and Vinnik objected to that request.

6. Vinnik denied the impropriety of opening the mail, stating in his letter of March 10, 1988, to the White Plains Postmaster that the name of an individual with AL&P on an envelope addressed to V&A or VA&L did not necessarily mean that the contents referred to a matter belonging to AL&P and, therefore, that examination of the contents by Vinnik or his office was necessary to assure proper distribution. Noting that there has never been any question of his misappropriation of mail belonging to persons in AL&P, in the March 10 letter Vinnik suggested that the solution to the problem would be resumption of the earlier arrangement whereby representatives of the two firms met each day at the post office to distribute the mail.

7. On referral of the dispute by the White Plains Postmaster, the Office of Field Legal Services, United States Postal Service, at Windsor, Connecticut, attempted to achieve informal resolution by agreement of the parties. The attempt was unsuccessful and the matter was referred to the Judicial Officer Department in accordance with DMM 157.72.

DISCUSSION

Mr. Vinnik argues that under the following provisions of the V&A partnership agreement he has the right to continue the partnership practice at 170 Hamilton Avenue, to receive mail addressed to V&A and VA&L at that address, and to decide this dispute over delivery in his own favor:

8. Dissolution and Termination

* * *

(c) In the event of the voluntary termination of this Partnership by either Partner, then LDA shall be entitled to the balance of his capital account as calculated in Subparagraph 8(d) hereof and shall relinquish to DMV upon the effective date of termination all continuing rights to use the Partnership facilities, assets and offices and DMV shall also be entitled to the balance of partnership funds after payment of LDA's capital account. underscoring supplied

* * *

10. Disputes

In the event of an inability to reach a mutual agreement on any issue, DMV's decision as to that issue shall be final and binding upon the Partnership.

Mr. Vinnik also asserts a right to delivery under the following provision of the Domestic Mail Manual (DMM):

153.52 Mail addressed to unincorporated firms or partnerships is delivered as addressed, as long as the business is being conducted under the same name at the same address, despite some members of the firm breaking off relations.

Vinnik is willing, however, to resume the first post-dissolution arrangement under which representatives of his office and AL&P met daily and sorted the mail at the post office.

Disputants Auerbach and Lewittes say that Vinnik is incorrect in his interpretation of paragraphs 8(c) and 10 of the partnership agreement and that DMM 153.52 does not apply because Vinnik has not conducted and is not conducting business under the names V&A and VA&L at 170 Hamilton Avenue. They argue that paragraph 8(c) does not confer on Vinnik the right to continue the partnership practice, that the mail in dispute is not an "asset" of the partnership, and that on dissolution of the partnership paragraph 10 (Disputes) of the agreement became inoperative. Further they say that the partnership agreement was between Vinnik and Auerbach only and, therefore, is inapplicable to the other attorneys associated with the former partnership, now with AL&P. Auerbach and Lewittes also say that because five of the six attorneys associated with VA&L are now with AL&P it is fair to estimate that the major portion of the disputed mail is directed to or intended for them.

After this dispute arose AL&P proposed an agreement with Vinnik whereby he would receive the disputed mail provided he would agree not to open mail clearly directed to an individual associated with AL&P and would further agree that if any mail so directed was opened by Vinnik's office, AL&P would have the right to direct the postmaster to forward all disputed mail to AL&P who would, in turn, forward Mr. Vinnik's mail to him. Vinnik refused this proposal, being unwilling to allow AL&P to "declare a default" by him so as to obtain delivery of the mail to them.

CONCLUSION

This dispute cannot be decided by reference to the provisions of the V&A partnership agreement, no longer in force, or under DMM 153.52 which does not, in terms, apply because Mr. Vinnik is not practicing law at 170 Hamilton Avenue as V&A or VA&L.

It is unfortunate that AL&P are not willing to accept Mr. Vinnik's offer to resume the workable informal arrangement under which representatives of both offices met at the post office daily to distribute the mail.

In the absence of agreement of the parties, and of any applicable provision of the DMM, the postmaster could be directed to return the disputed mail to senders. Presumably, however, the parties would not favor that disposition of the matter. I believe I have no authority to direct the parties to meet at the post office to distribute the mail. Therefore, my decision is somewhat arbitrary but consistent with the informal practice adopted and followed by the parties after AL&P's decision to forego distribution at the post office.

Mail addressed to Vinnik and Auerbach or Vinnik, Auerbach and Lewittes at 170 Hamilton Avenue will be delivered to Mr. Vinnik. Mr. Vinnik will forward promptly to AL&P all mail determined to belong to individuals associated with AL&P. He will not, however, open any mail directed to an individual associated with AL&P. AL&P will promptly return to Mr. Vinnik any mail so directed which, on opening, is found to belong to Mr. Vinnik. The parties are free to agree hereafter on a different manner of handling the disputed mail and should advise the postmaster of any such agreement.