[CORRECTED ORDER]

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 1997

Filed May 19, 1998
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 19th day of May one thousand, nine hundred and ninety-eight.

Present:

Honorable Frank X. Altimari,
Honorable John M. Walker, Jr.,
Honorable José A. Cabranes,

Circuit Judges.

DONALD S. ENGEL,

Plaintiff-Appellant,

ENGEL & ENGEL,

Plaintiff, O R D E R
No. 97-7676

v.

CBS, INC., MOSES & SINGER, and STANLEY ROTHENBERG,

Defendants-Appellees.




Appearing for Appellant: Donald S. Engel, Engel & Engel, New York, New York

Appearing for Appellee: Thomas J. Kavaler, Cahill Gordon & Reindel, New York, New York


This is an appeal from a judgment of the United States District Court for the Southern District of New York (Miriam Goldman Cedarbaum, District Judge), concluding, inter alia, that plaintiff-appellant had not adequately alleged that defendants-appellees interfered with his person or property in a manner satisfying New York's requirement that a plaintiff in an action for malicious civil prosecution suffer special injury. On consideration of the briefs, appendix, record, and the oral argument in this appeal, it is hereby ORDERED that the Clerk of this court transmit to the Clerk of the New York Court of Appeals a certificate in the form attached, together with a complete copy of the briefs, appendix and record filed by the parties with this court. This panel retains jurisdiction so that, after we receive a response from the New York Court of Appeals, we may dispose of the appeal.


FOR THE COURT:

_____________________________________
GEORGE LANGE III, Clerk
by: Lucille Carr, Deputy Clerk


--------------------------------------------------------------------------------

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 1997


Filed , 1998

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the day of one thousand, nine hundred and ninety-eight.

Present:

Honorable Frank X. Altimari,
Honorable John M. Walker, Jr.,
Honorable José A. Cabranes,

Circuit Judges.
DONALD S. ENGEL,

Plaintiff-Appellant,

ENGEL & ENGEL,

Plaintiff, No. 97-7676

v.

CBS, INC., MOSES & SINGER, and STANLEY ROTHENBERG,

Defendants-Appellees.



Certificate to the New York Court of Appeals pursuant to Second Circuit Local Rule § 0.27 and New York Court of Appeals Rule § 500.17.

In October 1983, defendant-appellee CBS, Inc. ("CBS") commenced suit in the United States District Court for the Southern District of New York (Vincent L. Broderick, District Judge) against members of the musical group Boston and its leader Donald Thomas Scholz ("Scholz") (the "first action"). This first action alleged breach of contract by Boston and Scholz, and sought damages of at least $20,000,000. Scholz and Boston retained plaintiff-appellee Donald S. Engel ("Engel") as their counsel and counterclaimed for breach of contract; unfair competition and violation of the Lanham Act, 15 U.S.C. § 1125(a); breach of fiduciary obligation; and tortious interference with contractual relations, demanding compensatory damages in excess of $5,000,000, punitive damages in excess of $10,000,000, and an accounting of recording royalties allegedly withheld by CBS.

By August 1984, while the first action was pending, Engel negotiated the contract between CBS's competitor, MCA, and Scholz on Scholz's behalf for the delivery of Boston's next album. On August 23, 1984, CBS filed an action in the United States District Court for the Southern District of New York (Vincent L. Broderick, District Judge) against Scholz, Scholz's agent Jeffrey Dorenfeld, MCA records, and Engel alleging copyright infringement and breach of contract for their roles in negotiating a contract between MCA and Scholz (the "second action"). CBS claimed that they owned the album pursuant to a contract with Boston.