In the Matter of a Mail Dispute Between

ABRAHAM HIRSCHFELD

     and

DAVID ROSENBERG

P.S. Docket No. MD 00-289

APPEARANCE FOR DISPUTANT      Caroline S. Press, Esq.
     ABRAHAM HIRSCHFELD:            Mark C. Zauderer, Esq.
                                                         Solomon, Zauderer, Ellenhorn,
                                                         Frischer & Sharp
                                                         45 Rockefeller Plaza
                                                         New York, NY 10111-0064

APPEARANCE FOR DISPUTANT      David Rosenberg, Esq.
     DAVID ROSENBERG:                  Marcus, Rosenberg & Diamond, LLP
                                                         488 Madison Avenue
                                                         New York, NY 10022-5702

INITIAL DECISION

This mail dispute has been docketed pursuant to Postal Operations Manual, Issue 8, July 16, 1998, Revised through September 7, 2000, Section 616.21, which requires the Chief Field Counsel to forward certain mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to Stahl Associates or Stanley Stahl Associates at 277 Park Avenue, New York, NY 10172-0003.

Sworn statements were submitted on behalf of both parties along with documents in support of their claims. The following findings of fact are based on the parties’ submittals and on the material forwarded by the United States Postal Service, New York Metro Law Office, which included documents that the parties submitted prior to the mail dispute reaching this office.

1. In 1975, Stanley Stahl and Abraham Hirschfeld entered into a partnership under the name of Stahl Associates for the purpose of holding and managing three apartment buildings in New York City. (Partnership Agreement included as Tab 1 of the submission of David Rosenberg, Esquire, and Tab A of the submission of Abraham Hirschfeld; Rosenberg Sworn Statement of Facts, ¶ 8).

2. The principal office of the partnership was established in the Partnership Agreement as Suite 4700, 277 Park Avenue in New York City, and the partnership operated at that location for 25 years. Mr. Stahl managed that office and operated a number of other businesses from that location. (Rosenberg Sworn Statement of Facts, ¶¶ 12, 15).

3. Messrs. Stahl and Hirschfeld were named in the Partnership Agreement as the sole Managing Partners with equal rights in the management of the partnership. (Partnership Agreement ¶ 7 (a)).

4. The agreement provided,

"In the event that either of the Managing Partners is no longer a partner, the remaining Managing Partner may appoint a successor Managing Partner, or may, in his discretion remain as sole Managing Partner." (Partnership Agreement ¶ 7 (b)).

5. Under the Partnership Agreement, the interest of a partner may be passed on by will to an immediate family member, provided the transferee agrees in writing to be bound by the provisions of the Partnership Agreement. (Partnership Agreement ¶ 11 (Fourth Supplementary Agreement)).

6. Stanley Stahl died on August 5, 1999 (Postal Service Submission, Tab ("PS") B).

7. On August 6, 1999, Mr. Hirschfeld submitted a change of address order to the Postal Service asking that the mail addressed to Stahl Associates, 277 Park Avenue, New York, NY, be forwarded to his business address (PS A). An August 12, 1999 letter from Mr. Hirschfeld’s attorney confirmed the change of address request (PS B).

8. On August 11, 1999, Preliminary Letters Testamentary for Mr. Stahl’s estate were issued to Richard F. Czaja and Gregg S. Wolpert, the executors named in Mr. Stahl’s will (PS D).

9. David Rosenberg is a member of a law firm, Marcus Rosenberg & Diamond, LLP, that represented Stahl Associates (PS J), at least up to the time of Mr. Stahl’s death. Mr. Rosenberg represents Mr. Stahl’s estate (Rosenberg Sworn Statement of Facts, ¶ 2).⁽¹⁾

10. Before Mr. Stahl’s death, he and Mr. Hirschfeld had frequently engaged in litigation against one another regarding the management of the partnership, and much of the litigation continues between Mr. Hirschfeld and the Stahl estate (Rosenberg Submission, Tabs 2-12).

11. Since Mr. Stahl’s death, Mr. Hirschfeld has initiated a lawsuit against the Postal Service asking the United States District Court for the Eastern District of New York to direct the Postal Service to deliver the Stahl Associates mail according to the instructions of Mr. Hirschfeld (PS K, M).

12. Postal Service regulations governing delivery of mail to a partnership when the mail is claimed by more than one person provide as follows:

"All mail addressed to a governmental or nongovernmental organization (including but not limited to corporations, firms, sole proprietorships, partnerships, joint ventures, and associations) . . . at the address of the organization is delivered to the organization. . . . If disagreement arises about where any such mail should be delivered, it must be delivered according to the order of the organization’s president or equivalent official." (Postal Operations Manual, Issue 8, July 16, 1998, Revised through September 7, 2000, Section 614.1; Similar language appears at Domestic Mail Manual, Issue 55, Revised through October 5, 2000, Section D042.4.1).

Mr. Rosenberg argues that the Stahl Associates partnership business has always been conducted at the disputed address and that Mr. Stahl was the de facto sole Managing Partner until his death. Mr. Hirschfeld argues that under the Partnership Agreement, he has become the sole Managing Partner and, as such, has the right to control delivery of the partnership’s mail.

Section 614.1 of the Postal Operations Manual (Finding 12) governs resolution of this mail dispute. Under the Partnership Agreement, Mr. Hirschfeld became the sole Managing Partner upon Mr. Stahl’s death (Findings 3, 4). While the Partnership Agreement allows transfer of a partner’s interest in the partnership by will (Finding 5), there has been no showing of such occurrence in this case. In any event, the Partnership Agreement does not specifically provide that such a successor to a partner’s interest would also succeed to the position of Managing Partner. Accordingly, as Managing Partner of the partnership and without opposition by any other Managing Partner,⁽²⁾ Mr. Hirschfeld is the "president or equivalent official" of the partnership (Finding 12). As such, he is entitled to control delivery of the partnership’s mail.

Section 614.1 of the Postal Operations Manual (Finding 12) is not intended to determine who should be entitled to own or control the partnership. It merely resolves disputes related to delivery of the partnership mail by application of a simple rule that focuses on identifying the person who is the equivalent of the president of the organization. Thus, this decision does not determine who should be operating the business of the partnership or who is entitled to the contents of the mail.

If Mr. Hirschfeld receives mail intended for other persons or entities receiving mail at the disputed address, he is to forward that mail to the appropriate party.

If either party obtains a court order directing delivery of the mail, Postal Service regulations provide that the mail will be delivered according to the court order. Postal Operations Manual, Issue 8, July 16, 1998, Revised through September 7, 2000, Section 616.3.

A delivery order should be issued directing the New York City Postmaster to deliver the mail addressed to Stahl Associates at 277 Park Avenue, New York, NY 10172-0003, as directed by Mr. Hirschfeld.⁽³⁾

Norman D. Menegat
Administrative Judge

¹ Although Mr. Rosenberg is identified as a disputant, it is apparent that he has no personal claim to the mail in dispute. Rather, he is representing the interest of the estate of Stanley Stahl, which is the party asserting a claim to the mail in dispute.
² Mr. Hirschfeld has apparently designated his son and brother as Managing Partners (Hirschfeld Submission, Tab B). For purposes of this decision, we assume their interests are aligned with his. They have made no appearance in this proceeding, and there is no evidence that they oppose Mr. Hirschfeld's claim to the disputed mail.
³ The July 31, 2000 Order to the Postmaster directed that he also hold mail addressed to Stanley Stahl Associates at the disputed address. However, that name was not mentioned in the change of address order (Finding 7), and the parties have not addressed that entity in their filings. The record does not reflect that Mr. Hirschfeld claims entitlement to receive that mail. Accordingly, mail addressed to Stanley Stahl Associates at the disputed address should be delivered as addressed.