Agai v. Mihalatos (In re Mihalatos)

527 B.R. 55, 2015 Bankr. LEXIS 652
CourtUnited States Bankruptcy Court, E.D. New York
DecidedMarch 3, 2015
DocketCase No. 8-13-70900-reg; Adv. Proc. No. 8-13-08088-reg
StatusPublished
Cited by8 cases

This text of 527 B.R. 55 (Agai v. Mihalatos (In re Mihalatos)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Agai v. Mihalatos (In re Mihalatos), 527 B.R. 55, 2015 Bankr. LEXIS 652 (N.Y. 2015).

Opinion

MEMORANDUM DECISION

Hon. Robert E. Grossman, U.S.B.J.

Before the Court is a motion for summary judgment by the Plaintiffs, Jacob Agai, 291 Avenue P, LLC and Summer-field Developers, Inc. (collectively, the “Plaintiffs” or “Agai”), seeking judgment as a matter of law that the Debtor, Dennis Mihalatos (“Debtor” or “Mihalatos”), should be denied his discharge pursuant to 11 U.S.C. §§ 727(a)(3), (a)(4)(A) and (a)(5) of the Bankruptcy Code.1 Much of the complaint alleges record-keeping, disclosure and accountability failures by the Debtor with respect to an entity, Diontech Consulting, Inc., and relies on the conflation of the Debtor and Diontech as one and the same entity to hold the Debtor responsible under § 727(a) for these failures as to Diontech. The Plaintiffs’ reliance is based upon a state court decision and order which pierced the corporate veil as to the Debtor and his Diontech partners to enforce a pre-petition judgment pursuant to N.Y. C.P.L.R. Article 52. The Plaintiffs ask this Court to equate this “piercing” finding with an “alter ego” finding and treat this as res judicata on the issue of the Debtor’s status as the alter ego of Diontech. The Court is not prepared to do so. Although in New York, the concepts of piercing the corporate veil and a finding of alter ego have routinely been equated, possibly because under some recitations of the standard an “alter ego” finding is subsumed in a “piercing” finding, they are not necessarily the same and do not necessarily have the same consequences. The case presented now highlights an important distinction between the two concepts and the consequences that flow from each finding: piercing the corporate veil imposes vicarious liability upon an individual for a corporation’s debts, while [60]*60an alter ego finding would make the individual directly liable for the corporate debt by conflating the identities of the two. See MWH Int’l, Inc. v. Inversora Murten, S.A., No. 1:11-cv-2444-GHW, 2015 WL 729097 (S.D.N.Y. Feb. 11, 2015). The former would impose liability on the principal while in the context of a bankruptcy the latter would, in addition to broadening the reach of the § 362(a) automatic stay, impose additional disclosure and accountability requirements with respect to the now non-existent corporation, beyond just monetary liability. The distinction is critical in this § 727(a) case, and the Court is not prepared to find on summary judgment that the state court clearly made the required “alter ego” finding or that it was implicit in its holding.

With respect to the remainder of the Plaintiffs’ arguments in favor of denial of the discharge, the Court finds that there are material facts in dispute which preclude summary judgment. While the Court finds the allegations of the complaint to be compelling and if proven at trial would tend to warrant denial of the discharge, the Court is unable to find as a matter of law that the Plaintiffs are entitled to the relief sought. For these reasons and as more fully stated below, the Plaintiffs’ summary judgment motion is denied.

Procedural History

On February 25, 2013 (the “Petition Date”), the Debtor filed a petition for relief under chapter 7 of the Bankruptcy Code, and Kenneth Kirschenbaum, Esq. (“Trustee”) was subsequently appointed as trustee. On June 3, 2013, the Plaintiffs filed the instant complaint seeking to deny the Debtor’s discharge in its entirety and/or seeking to except the Plaintiffs’ debt from discharge under §§ 523(a)(2), (4) and (6). The Debtor filed an answer on July 5, 2013, and an amended answer August 8, 2013. On December 9, 2013, Plaintiffs filed a Memorandum in Support of Motion for Leave to Amend the Complaint to add a claim under § 727(a)(2)(A), and for Summary Judgment on Plaintiffs’ § 727 Claims as to Counts One (§ 727(a)(3)), Two (§ 727(a)(4)(A)) and Three (§ 727(a)(5)). The Debtor filed opposition to the motion on April 16, 2014, and the Plaintiffs filed a reply on April 18, 2014. On April 21, 2014, the Court granted the Plaintiffs’ Motion for Leave to Amend the Complaint, and Plaintiffs filed an amended complaint on May 29, 2014, alleging an additional cause of action under § 727(a)(2). A hearing on the Plaintiffs’ Motion was held June 2, 2014, at which time this matter was taken under submission.

Facts

From about 1999 to 2008, the Debtor was a one-third owner of a construction company called Diontech Consulting, Inc. (“Diontech”) (Am. Schedule B, 13-70900-REG, ECF. No. 20); (Defs Mem. of Law in Opp’n, 13-08088-REG, ECF. No. 23 at 2); (Pis’ EDNY Local Bankr.Rule 7056.1 Statement of Undisputed Material Facts, 13-08088-REG, ECF. No. 18 ¶ 18.) The other two owners of Diontech were Sokra-tis Antoniou (“Sokratis”) and Stylianos An-toniou (“Stylianos”), both of whom are debtors before this Court.2 In 2007, the [61]*61Plaintiffs sued Diontech and Mihalatos (but not Sokratis or Stylianos) alleging that they suffered damages as a result of Diontech’s breach of two construction contracts. (Compl., 13-08088-REG, ECF No. 1 ¶ 1.) On September 19, 2011, after a trial in the Supreme Court of the State of New York, County of Richmond, Justice Dollard issued a decision and awarded the Plaintiffs judgments totaling approximately $5.8 million against Diontech and Mihalatos. (Decl. of Michael Paul Bowen, Ex. 6, 13-08088-REG, ECF No. 19-8.) Plaintiffs subsequently commenced post-judgment proceedings pursuant to Article 52 of the New York Civil Practice Law and Rules to, inter alia, pierce the corporate veil of Diontech and hold the Debtor personally liable, jointly and severally with the other principals. (Plaintiffs’ Mot. for Leave to Amend the Compl. and Summ. J., 13-08088-REG, ECF No. 17 at 6.). The bankruptcy filings by the Debtor, Stylia-nos and Socrates stayed the Plaintiffs’ enforcement actions, and so on March 4, 2013, Plaintiffs sought relief from the automatic stay to pursue the Article 52 proceeding. (Mot. for Relief from Stay, 13-70900-REG, ECF No. 11). The stay was lifted March 22, 2013. (Order Granting Mot. For Relief From Stay, 13-70900-REG, ECF No. 23.) On August 19, 2013, the state court entered a decision and order piercing the corporate veil (“Veil Piercing Order”). (Decl. of Michael Paul Bowen, Ex. 7, 13-08088-REG, ECF No. 19-9.)

While the Plaintiffs’ lawsuit was pending, around the end of 2008, Diontech ceased doing business, and the company was dissolved around 2009. (Pis’ EDNY Local Bankr.Rule 7056.1 Statement of Undisputed Material Facts, 13-084088-REG, ECF. No. 18 ¶ 21.) The Diontech general ledgers for 2007 and 2008 show total cumulative “loans” to the Debtor in the amount of $140,000. (Plaintiffs’ Mot. for Leave to Amend the Compl. and Summ. J., 12-08088-REG, ECF No. 17 at 7.) - Diontech’s 2008 Tax Returns report total “Loans to shareholders” in an amount of $1,001,768 at the end of the tax year. (Decl. of Michael Paul Bowen, Ex. 38, Part 1, 13-08088-REG, ECF No. 19-47 at 4.) Despite these documents, the Debtor claims that that these transfers to him were not loans but rather salary payments. (Defs Aff. Regarding Loans to Shareholders, 13-08088-REG, ECF. No. 27 ¶12.) In an affidavit filed with the Court, the Debtor attempts to explain the transfers and the use of the funds. (Defs Aff. Regarding Loans to Shareholders, 13-08088-REG, ECF. No. 27.)

In the latter part of 2008, the Debtor sought the assistance of a company called People’s Management Resources, Inc. (“PMRI”) to raise additional capital for a failing Diontech.

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Cite This Page — Counsel Stack

Bluebook (online)
527 B.R. 55, 2015 Bankr. LEXIS 652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agai-v-mihalatos-in-re-mihalatos-nyeb-2015.