Case 6:21-cv-00781-LEK-ATB Document 1-1 Filed 07/07/21 Page 1 of 1 JS 44 (Rev. 10/20) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS JOSEPH PEPITONE NATIONAL BASEBALL HALL OF FAME AND MUSEUM, INC. (b) County of Residence of First Listed Plaintiff Middlesex County of Residence of First Listed Defendant Otsego (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known) FASS & D’AGOSTINO, P.C. 150 Broadhollow Road | Suite 217 II. BASISMelville, OF JURISDICTION New York 11747(Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) 1 U.S.Tel: Government (631) 824-60403 Federal Question PTF DEF PTF DEF Plaintiff--and-- (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place X4 4 X BARSHAY, RIZZO & LOPEZ, PLLC of Business In This State 2 U.S.445 Government Broadhollow Road✖ 4 Diversity | Suite CL18 Citizen of Another State ✖ 2 2 Incorporated and Principal Place 5 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Melville, New York 11747 Citizen or Subject of a 3 3 Foreign Nation 6 6 Tel: (631) 210-7272 Foreign Country IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions. CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act 120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a)) 140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment 150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust & Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking 151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce 152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and (Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR 880 Defend Trade Secrets 480 Consumer Credit of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards Act of 2016 (15 USC 1681 or 1692) 160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 485 Telephone Consumer 190 Other Contract Product Liability ✖ 380 Other Personal 720 Labor/Management SOCIAL SECURITY Protection Act 195 Contract Product Liability 360 Other Personal Property Damage Relations 861 HIA (1395ff) 490 Cable/Sat TV 196 Franchise Injury 385 Property Damage 740 Railway Labor Act 862 Black Lung (923) 850 Securities/Commodities/ 362 Personal Injury - Product Liability 751 Family and Medical 863 DIWC/DIWW (405(g)) Exchange Medical Malpractice Leave Act 864 SSID Title XVI 890 Other Statutory Actions REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation 865 RSI (405(g)) 891 Agricultural Acts 210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 893 Environmental Matters 220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act FEDERAL TAX SUITS 895 Freedom of Information 230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 870 Taxes (U.S. Plaintiff Act 240 Torts to Land 443 Housing/ Sentence or Defendant) 896 Arbitration 245 Tort Product Liability Accommodations 530 General 871 IRS—Third Party 899 Administrative Procedure 290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION 26 USC 7609 Act/Review or Appeal of Employment Other: 462 Naturalization Application Agency Decision 446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration 950 Constitutionality of Other 550 Civil Rights Actions State Statutes 448 Education 555 Prison Condition 560 Civil Detainee - Conditions of Confinement V. ORIGIN (Place an “X” in One Box Only) ✖ 1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation - (specify) Transfer Direct File Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 28 U.S.C. § 1332 VI. CAUSE OF ACTION Brief description of cause: Conversion, Replevin, Unjust Enrichment, Quantum Merit and Promissory Estoppel concerning Plaintiff's baseball bat used by New York Yankee legend Mickey Mantle to hit Mantle’s 500th career homerun VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, F.R.Cv.P. 1,000,000.00 JURY DEMAND: ✖ Yes No VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DOCKET NUMBER DATE SIGNATURE OF ATTORNEY OF RECORD July 7, 2021 s/ David M. Barshay FOR OFFICE USE ONLY
RECEIPT # AMOUNT $402.00 APPLYING IFP JUDGE LEK MAG. JUDGE ATB ANYNDC-5577982 CASE NO. 6:21-cv-00781 (LEK/ATB) Case 6:21-cv-00781-LEK-ATB Document 1 Filed 07/07/21 Page 1 of 10
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
JOSEPH PEPITONE, Docket No: 6:21-cv-00781 (LEK/ATB)
Plaintiff, COMPLAINT
vs. JURY TRIAL DEMANDED NATIONAL BASEBALL HALL OF FAME AND MUSEUM, INC.,
Defendant.
JOSEPH PEPITONE (hereinafter referred to as “Pepitone” or “Plaintiff”), by and through
the undersigned counsel, complains, states, and alleges against THE NATIONAL BASEBALL 217
. C . UITE UITE P HALL OF FAME AND MUSEUM, INC. (hereinafter referred to as “Defendant”), as follows:
, S 11747
, ORK OAD Y R INTRODUCTION GOSTINO EW A N
’ , D 1. This action seeks to recover Pepitone’s personal property, namely Pepitone’s & ASS ASS ELVILLE ROADHOLLOW F th B M baseball bat used by New York Yankee legend Mickey Mantle to hit Mantle’s 500 career 150 homerun, which has been unlawfully converted by Defendant despite Pepitone’s rightful demand
therefor. Plaintiff also seeks money damages for Defendant’s unlawful conduct.
JURISDICTION AND VENUE
2. This Court has federal subject matter jurisdiction pursuant to 28 U.S.C. § 1332, as
the parties are citizens of different states, and the amount in controversy is more than $75,000.00.
3. Venue is proper under 28 U.S.C. §1391(b) because a substantial part of the events
or omissions giving rise to the claim occurred in this Judicial District.
1 Case 6:21-cv-00781-LEK-ATB Document 1 Filed 07/07/21 Page 2 of 10
PARTIES
4. Plaintiff is an individual residing in East Brunswick, in Middlesex County, New
Jersey.
5. On information and belief, Defendant is a corporation with its principal place of
business in Otsego County, New York. Defendant owns real property, and conducts business, in
this jurisdiction.
6. At all relevant times, Defendant conducted business within the State of New York.
7. Defendant operates the National Baseball Hall of Fame and Museum located at 25
Main Street, Cooperstown, New York (hereinafter referred to as the “Museum”).
8. According to the Museum’s website, the Museum “is dedicated to preserving the
217
. history of baseball, honoring excellence in the game and connecting the generations of baseball C . UITE UITE P
, S 11747
, enthusiasts.” ORK OAD Y R GOSTINO EW A N
’
, FACTUAL BACKGROUND D
& ASS ASS ELVILLE 9. Pepitone is a former professional Major League Baseball player who played for ROADHOLLOW F B M
150 several professional teams during his career spanning from 1962 to 1973.
10. From 1962 to 1969, Pepitone played for the iconic New York Yankees baseball
club.
11. On May 14, 1967, the New York Yankees were hosting the Baltimore Orioles in a
regular season game (hereinafter referred to as the “Game”).
12. One of Pepitone’s teammates that day was the future Hall of Famer, Mickey Mantle
(“Mantle”), who was 35 years of age and in his 17th and penultimate season as a New York
Yankee.
13. In addition to being teammates, Pepitone and Mantle were dear friends.
2 Case 6:21-cv-00781-LEK-ATB Document 1 Filed 07/07/21 Page 3 of 10
14. Mantle entered the Game sitting at 499 career homeruns – one shy of a career
milestone and earning a membership in the exclusive “500 Home Run Club.”1
15. Although Mantle played most of his career in center field for the Yankees, Mantle
would start at first base in his last two seasons (1967-1968), which is the position he played during
the Game.
16. Mantle was known to use a medium handle and a small to medium barrel bat, at 35
inches long and 32 ounces.2 As Mantle got older, he would sometimes borrow a teammate’s lighter
bat to generate more bat speed.
17. In the 6th inning of the Game, with the Yankees trailing 4-3, Yankees’ manager
Ralph Houk sent Pepitone to the plate to pinch hit for and replace teammate Bill Robinson in center
217
. field. C . UITE UITE P
, S 11747
, 18. Pepitone proceeded to hit a two-run home run off Baltimore Orioles pitcher Stu ORK OAD Y R GOSTINO EW A N
’
, Miller (“Miller”) to put the Yankees ahead, 5-4. D
& th ASS ASS ELVILLE 19. In the next inning (7 inning) of the Game, Pepitone handed his bat (“Pepitone’s ROADHOLLOW F B M
150 Bat” or “the Bat”) to Mantle and told Mantle that the Bat “had another home run in it.”
20. Mantle smiled at Pepitone and took the Bat to the plate.
21. Pepitone’s Bat was a natural stain wooden bat, at 35 inches and 29 ounces. The
Bat was emblazoned with a facsimile of Pepitone’s signature on the barrel between the words
“GENUINE” and “LOUISVILLE SLUGGER.” Stamped further down on the barrel of the Bat
was a stylized “POWERIZED” followed by an oblong circle containing “LOUISVILLE
SLUGGER 125 HILLERICH & BRADSBY Co MADE IN U.S.A. LOUISVILE KY. Under the
1 As of 1967, there were only 5 members of the Club.
2 See https://www.sluggermuseum.com/about-us/faqs.
3 Case 6:21-cv-00781-LEK-ATB Document 1 Filed 07/07/21 Page 4 of 10
pine tar on the handle and knob of the Bat “30 ½” was handwritten in black ink.3
22. Hillerich & Bradsby Company (“H&B”) was, and remains, one of the most popular
manufacturers of baseball bats including the Louisville Slugger brand.
23. H&B routinely entered into endorsement deals with professional major league
ballplayers wherein the Company would produce a model-line of bat of certain specifications for
a specific individual player and provide bats from this line to that player for use as endorsement.
24. Pepitone and H&B were partners in such an endorsement deal and the Bat was
produced according to that deal and Pepitone’s specifications.
25. In the 7th inning and his final at-bat of the Game, using Pepitone’s Bat, Mantle
reached a career milestone by hitting his 500th career home run off Miller and became the first-
217
. ever switch-hitting major leaguer to do so. C . UITE UITE P
, S 11747
, 26. After Mantle’s home run, Mantle returned the Bat to Pepitone. ORK OAD Y R GOSTINO EW A N
’
, 27. Pepitone brought the Bat into the Yankees’ locker room and secured it within his D
& ASS ASS ELVILLE personal locker. Thereafter, however, the Bat was removed from Pepitone’s locker. ROADHOLLOW F B M
150 28. Upon noticing the Bat was missing, Pepitone began to question teammates and
Yankee staff members.
29. Upon learning that Pepitone was looking for the Bat, Robert (“Bob”) O. Fishel, a
front office Executive for the Yankees, approached Pepitone and told him that the Yankees wanted
to send the Bat to the Museum, and asked if Pepitone would allow the Bat to be loaned to the
Museum to be displayed in commemoration of his friend Mantle’s landmark achievement.
3 See https://collection.baseballhall.org/PASTIME/mickey-mantle-500th-career-home-run-bat- 1967-may-14-1.
4 Case 6:21-cv-00781-LEK-ATB Document 1 Filed 07/07/21 Page 5 of 10
30. The Bat was removed from Pepitone’s locker without Pepitone’s knowledge,
approval, or consent.
31. Nevertheless, Pepitone agreed to lend the Bat to the Museum with the
understanding and upon the condition that it would be returned to him at any time upon his request.
32. Upon information and belief, on or about May 25, 1967, the Museum took physical
possession of Pepitone’s Bat.
33. Upon information and belief, from on or about May 25, 1967, to date, the Museum
has and continues to display Pepitone’s Bat under the description “Joe Pepitone model bat used by
Mickey Mantle for his 500 HR” with accession number B.68.67.
34. Pepitone has visited the Museum several times since May 25, 1967, and was always
217
. reassured by Museum staff including William “Bill” J. Guilfoile, the Public Relations Director of C . UITE UITE P
, S 11747
, the Museum, that Pepitone’s Bat was his “for the asking” and it would be returned to him at any ORK OAD Y R GOSTINO EW A N
’
, time upon his request. D
& ASS ASS ELVILLE 35. On or about September 1, 2020, at Pepitone’s request, Steven F. Christiansen, Esq., ROADHOLLOW F B M
150 sent a letter to Timothy Mead, President of the Museum, requesting Pepitone’s Bat be returned to
Pepitone, its rightful owner.
36. On or about September 17, 2020, Karen R. Berry, Esq., of Patterson Belknap Webb
& Taylor, LLP, outside counsel for the Museum, sent an email to Mr. Christiansen stating that the
Museum were reviewing the matter and would provide a “substantive response” within a few
weeks.
37. On or about September 28, 2020, Ms. Berry sent a response to Mr. Christiansen
whereby Pepitone’s request for a return of the Bat was rejected by the Museum.
5 Case 6:21-cv-00781-LEK-ATB Document 1 Filed 07/07/21 Page 6 of 10
38. Pepitone’s Bat is a one-of-a-kind historical baseball artifact with an estimated value
more than $500,000.00.4
39. Pepitone did not gift, sell, assign, or in any way transferred his sole ownership
interest in the Bat to any person or entity.
40. Pepitone unequivocally demanded that the Museum return the Bat on September 1,
2020, as promised.
41. The Museum has unreasonably and unlawfully refused Pepitone’s demand to return
the Bat and continues to possess the Bat without legal cause or justification over Pepitone’s
objection and contrary to Pepitone’s legal and equitable right to possession.
FIRST COUNT
Conversion 217
. C . UITE UITE P
, S 11747
42. Plaintiff repeats and realleges the foregoing paragraphs as if fully set forth at length , ORK OAD Y R
GOSTINO herein. EW A N
’ , D
& 43. Pepitone is the sole and rightful owner of the Bat. ASS ASS ELVILLE ROADHOLLOW F B M 44. Pepitone demanded the return of the Bat, which Defendant has refused without 150 legal cause or justification.
45. Defendant has retained possession of Pepitone’s Bat to the exclusion of Pepitone
without legal cause or justification.
46. Defendant has intended to, and does intend to, exercise unauthorized control and
dominion over Pepitone’s Bat without legal cause or justification.
47. Defendant has no possessory rights to Pepitone’s Bat.
4 Other one-of-a-kind game used Mickey Mantle bats (e.g., a Mantle game used All-Star bat or World Series bat), with much less historical significance than the bat used to hit his historic 500th career home run, sold for prices ranging between $113,924.00-$430,200.00 since 2014. See https://www.psacard.com/probatfacts/hall-of-fame-players/mickey-mantle/1550.
6 Case 6:21-cv-00781-LEK-ATB Document 1 Filed 07/07/21 Page 7 of 10
48. As a result of the foregoing, Defendant has converted Pepitone’s property, in
reckless and willful disregard of Pepitone’s superior possessory rights.
49. By reason of the Defendant’s conversion, Pepitone seeks the return of the Bat, and
compensatory and exemplary damages in an amount to be determined at trial but believed to be no
less than ONE MILLION DOLLARS ($1,000,000.00), together with all other remedies and
damages which may be applicable under State and Federal law.
SECOND COUNT Replevin
50. Plaintiff repeats and realleges the foregoing paragraphs as if fully set forth at length
herein.
51. Pepitone has the sole possessory right to the Bat, to the exclusion of all other 217
. C . UITE UITE P
, S 11747
persons and/or entities. , ORK OAD Y R
GOSTINO 52. Defendant has no possessory right to Pepitone’s Bat. EW A N
’ , D
& 53. Defendant has been on notice that Pepitone is the rightful owner of the Bat but has ASS ASS ELVILLE ROADHOLLOW F B M refused to return it. 150 54. Defendant has wrongfully and unlawfully retained Pepitone’s Bat from the
Pepitone despite the demand for its return having been made.
55. By reason of Defendant’s wrongful and unlawful retention of Pepitone’s Bat,
Pepitone seeks the return of the Bat, and/or damages equal to the value of the Bat in an amount to
be determined at trial but believed to be no less than ONE MILLION DOLLARS ($1,000,000.00),
with interest, together with all other remedies and damages which may be applicable under State
and Federal law.
7 Case 6:21-cv-00781-LEK-ATB Document 1 Filed 07/07/21 Page 8 of 10
THIRD COUNT Unjust Enrichment & Quantum Merit
56. Plaintiff repeats and realleges the foregoing paragraphs as if fully set forth at length
herein.
57. Defendant has become enriched and benefitted financially because of Pepitone’s
loaning the Bat to Defendant.
58. Defendant has become enriched and benefitted financially at the expense of
Pepitone.
59. It is inequitable and against good conscious for Defendant to retain Pepitone’s Bat
and enjoy the financial enrichment and benefit thereof, at the expense and to the detriment of
Pepitone. 217
. C . UITE UITE P
, S 11747
60. Based on the foregoing, Pepitone seeks the return of the Bat, and/or damages equal , ORK OAD Y R
GOSTINO to the value of the Bat in an amount to be determined at trial but believed to be no less than ONE EW A N
’ , D
& MILLION DOLLARS ($1,000,000.00), with interest, together with all other remedies and ASS ASS ELVILLE ROADHOLLOW F B M damages which may be applicable under State and Federal law. 150 FOURTH COUNT Promissory Estoppel
61. Plaintiff repeats and realleges the foregoing paragraphs as if fully set forth at length
herein.
62. By the terms of the loan agreement, and Defendant’s frequent reassurances that the
Bat was Pepitone’s property to be returned upon Pepitone’s demand, and that Pepitone continues
to allow the Bat to be displayed in the Museum, Defendant made a clear and unambiguous promise
to return the Pepitone’s Bat to Pepitone.
8 Case 6:21-cv-00781-LEK-ATB Document 1 Filed 07/07/21 Page 9 of 10
63. Pepitone allowed the Museum to initially display the Bat and to continue to display
the Bat in reliance on Defendant's promises that the Bat was Pepitone’s property to be returned to
Pepitone upon Pepitone’s demand.
64. Pepitone’s reliance was based on the loan agreement and the promises made by
Defendant. Based on this reliance, Pepitone is unable to mitigate damages and has been damaged
in an amount to be determined at trial but believed to be no less than ONE MILLION DOLLARS
($1,000,000.00).
65. Based on the foregoing, Pepitone seeks the return of the Bat, and/or damages equal
to the value of the Bat in an amount to be determined at trial but believed to be no less than ONE
MILLION DOLLARS ($1,000,000.00), with interest, together with all other remedies and
217
. damages which may be applicable under State and Federal law. C . UITE UITE P
, S 11747
, JURY DEMAND ORK OAD Y R GOSTINO EW A N
’
, 66. Plaintiff hereby demands a trial of this action by jury. D
& ASS ASS ELVILLE PRAYER FOR RELIEF ROADHOLLOW F B M
150 WHEREFORE, Plaintiff respectfully requests judgment as follows: a. On the First Count, Pepitone seeks the return of the Bat, and/or damages equal to the value of the Bat in an amount to be determined at trial, but believed to be no less than ONE MILLION DOLLARS ($1,000,000.00), with interest, together with all other remedies and damages which may be applicable under State and Federal law; and
b. On the Second Count, Pepitone seeks the return of the Bat, and/or damages equal to the value of the Bat in an amount to be determined at trial, but believed to be no less than ONE MILLION DOLLARS ($1,000,000.00), with interest, together with all other remedies and damages which may be applicable under State and Federal law; and
c. On the Third Count, Pepitone seeks the return of the Bat, and/or damages equal to the value of the Bat in an amount to be determined at trial, but believed to be no less than ONE MILLION DOLLARS ($1,000,000.00), with interest, together with all other remedies and damages which may be applicable under State and Federal law; and
9 Case 6:21-cv-00781-LEK-ATB Document 1 Filed 07/07/21 Page 10 of 10
d. On the Fourth Count, Pepitone seeks the return of the Bat, and/or damages equal to the value of the Bat in an amount to be determined at trial, but believed to be no less than ONE MILLION DOLLARS ($1,000,000.00), with interest, together with all other remedies and damages which may be applicable under State and Federal law; and
e. Grant Pepitone actual, compensatory, exemplary, and punitive damages in an amount to be determined at trial; and
f. Grant Plaintiff costs and attorneys’ fees; all together with
g. Such other relief that the Court determines is just and proper.
Dated: June 21, 2021 Yours etc.,
By: s/ Joseph A. D’Agostino
217 Joseph A. D’Agostino, Esquire
. C
. FASS & D’AGOSTINO, P.C. UITE UITE P
, S 11747
, 150 Broadhollow Road | Suite 217 ORK OAD Melville, New York 11747 Y R GOSTINO EW
A Tel: (631) 824-6040 N
’ ,
D Fax: (631) 610-2731
& Email: [email protected] ASS ASS ELVILLE ROADHOLLOW F Attorneys for Plaintiff B M
150 -and-
By: s/ David M. Barshay David M. Barshay, Esquire BARSHAY, RIZZO & LOPEZ, PLLC 445 Broadhollow Road | Suite CL18 Melville, New York 11747 Tel: (631) 210-7272 Fax: (516) 706-5055 Email: [email protected] Attorneys for Plaintiff
10