American Motor Club, Inc. v. Neu (In re American Motor Club, Inc.)

155 B.R. 49, 29 Collier Bankr. Cas. 2d 248, 1993 Bankr. LEXIS 884
CourtDistrict Court, E.D. New York
DecidedJune 15, 1993
DocketBankruptcy No. 887-70763-260; Adv. No. 189-0044
StatusPublished

This text of 155 B.R. 49 (American Motor Club, Inc. v. Neu (In re American Motor Club, Inc.)) is published on Counsel Stack Legal Research, covering District 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
American Motor Club, Inc. v. Neu (In re American Motor Club, Inc.), 155 B.R. 49, 29 Collier Bankr. Cas. 2d 248, 1993 Bankr. LEXIS 884 (E.D.N.Y. 1993).

Opinion

DECISION ON MOTION SEEKING AN ORDER REQUESTING HONORABLE EDWARD J. KORMAN, UNITED STATES DISTRICT JUDGE, TO WITHDRAW REFERENCE OF THIS ADVERSARY PROCEEDING

CONRAD B. DUBERSTEIN, Chief Judge.

This is an adversary proceeding in which the Official Committee of Unsecured Creditors (the “Committee”) is the plaintiff seeking payment of certain promissory notes (collectively, the “Notes”) allegedly executed and delivered by Nicholas Neu (“Neu”), David Gershuny (“Gershuny”), and Dante Senise (“Senise” or the “Senise Estate”), to American Motor Club, Inc., the debtor herein (“AMC” or the “Debtor”). All of the foregoing are the defendants in this action, except that defendant Jacqueline Couch is the executor of the estate of Dante Senise. Pursuant to this Court’s order of April 30, 1991, the Committee was empowered to bring and defend all litigation proceedings by or against the Debtor.

This matter comes before the Court on the motion of Neu and Gershuny who seek an order requesting Honorable Edward J. Korman, United States District Judge, to withdraw reference of this adversary proceeding or, alternatively, stay the trial pending determination of an action instituted by the Committee in the District Court, titled The Official Committee of Unsecured Creditors of American Motor Club, Inc. v. Bernard Gershuny, et. al, Docket No. 92 CV 2524 (EJK) (the “District Court Action”). For the reasons stated below, their motion is denied.

FACTS

AMC was a New York corporation which operated as a motor club offering benefits including pre-paid collision service repair of damaged motor vehicles. In 1985, the Attorney General of the State of New York, on behalf of the New York State Insurance Department (the “Insurance Dept.”), commenced a special proceeding in the Supreme Court of the State of New York, New York County, against AMC and John Senise, an officer and shareholder of AMC. The Insurance Dept, viewed the benefits offered by AMC as unlicensed insurance and sought to (1) enjoin the. sale of AMC’s pre-paid collision service contracts (the “AMC contract”), (2) impose sanctions pursuant to N.Y.Ins.Law § 1102 (conducting an unlicensed insurance business) and § 2117 (the sale of unauthorized insurance), and (3) for damages and restitution pursuant to N.Y.Exec.Law § 63(12) (persistent illegality).

In its initial petition (the “Petition”) submitted in the special proceeding, the Insurance Dept, argued that the AMC contract constituted insurance since, under the contract, a member’s only obligation for repairs was the initial annual membership fee and a fixed service fee per repair. The Insurance Dept, deemed the annual fee and service fee analogous to a premium and deductible, respectively.

AMC answered the petition and filed a cross motion to dismiss the proceeding. As [51]*51a defense, AMC argued that the annual membership fee was not a premium since insurance premiums are not credited to past or future claims, or to future premiums for policy renewals, and therefore the AMC contract was not insurance.

However, on January 14, 1987, the Supreme Court of the State of New York, New York County, decided that the AMC contract was unlicensed insurance. People v. American Motor Club, Inc., No. 43148/85, slip op. (N.Y.Sup.Ct. Jan. 14, 1987). The court enjoined further sales of the AMC contracts, but denied the imposition of sanctions, damages or restitution, finding no intentional or wilful violation of the N.Y.Ins.Law. Id. at 2.

Upon a motion to reargue by the Insurance Dept., the Supreme Court of the State of New York, New York County, by Honorable Milton Richardson, issued a decision on April 4, 1987, which added AMC’s president from February, 1985, through March 3, 1987, Nicholas Neu as a party and imposed a $5,001,000 fine against AMC, Neu and Senise, holding them jointly and severally liable for multiple violations of N.Y. Ins. Law § 1102. People v. American Motor Club, Inc., Index No. 43148/85, slip op. (N.Y.Sup.Ct. Apr. 4, 1987).

Subsequently, the three parties appealed this decision. On May 19, 1987, AMC filed with this Court, a voluntary petition for relief under Chapter 11 of the Bankruptcy Code.

It is to be noted that early in this case, it became apparent that none of the officers of the Debtor were continuing on in the operations of the Debtor’s affairs. Consequently, an Order was entered by this Court, whereby the Official Committee of Unsecured Creditors (the “Committee”) was substituted as the party plaintiff or defendant in all pending litigation concerning the Debtor and was authorized and empowered to prosecute, defend, compromise or settle, release or abandon any claim or cause of action asserted or assert-able by or against the Debtor. The Committee, by its counsel, has proceeded with the ongoing liquidation of the Debtor in this Chapter 11 case in lieu of converting it to a case under Chapter 7.

On October 29, 1987, a decision was issued by the Appellate Division, First Department, pursuant to an appeal of the April 14, 1987, decision. People v. American Motor Club, Inc., 133 A.D.2d 593, 520 N.Y.S.2d 383 (N.Y.App.Div.1987). The court held that Neu had been properly joined as a party, but struck the provisions that found Neu and Senise jointly and severally liable for the fine, due to the fact that Neu had not been afforded notice of the State’s intention to seek sanctions against him personally and that Senise had never been charged with violating N.Y.Ins. Law § 1102. Id. at 595, 520 N.Y.S.2d at 385. However, the fine was affirmed against AMC and its argument that the AMC contract had been based upon other contracts which had not been held to constitute illegal insurance was rejected. The court found that “the other plans to which comparison was made differed materially and legally.” Id. On March 31, 1988, a motion for leave to reargue was denied by the Appellate Division. People v. American Motor Club, Inc., 138 A.D.2d 988, 527 N.Y.S.2d 331 (N.Y.App.Div.1988). Subsequently, a motion for leave to appeal to the New York Court of Appeals was denied on July 12, 1988. People v. American Motor Club, Inc., 72 N.Y.2d 805, 532 N.Y.S.2d 755, 528 N.E.2d 1228 (1988). On July 7, 1992, the Court of Appeals dismissed Neu’s latest appeal stemming from the Insurance Dept’s action. People v. American Motor Club, Inc., 80 N.Y.2d 893, 587 N.Y.S.2d 909, 600 N.E.2d 636 (1992).

On April 18, 1989, the Committee commenced the within adversary proceeding against Neu, Gershuny and the Senise Estate, seeking payment of the aforementioned promissory notes allegedly executed and delivered by the defendants to the Debtor.

It is alleged in the complaint that, on or about May 2,1986, Neu executed and delivered to the Debtor two promissory notes: one in the sum of $300,000.00, payable on May 2, 1988, (“Neu Note I”) and a second in the sum of $305,000.00 payable at matu[52]*52rity on January 31, 1987 (“Neu Note II”).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Granfinanciera, S.A. v. Nordberg
492 U.S. 33 (Supreme Court, 1989)
In Re Ben Cooper, Inc.
896 F.2d 1394 (Second Circuit, 1990)
In Re Oil Co., Inc.
140 B.R. 30 (E.D. New York, 1992)
Cooper v. Howitt (In Re 1733 Ridge Road East, Inc.)
125 B.R. 722 (W.D. New York, 1991)
In Re Ethington
150 B.R. 48 (D. Idaho, 1993)
In Re Southold Development Corp.
129 B.R. 18 (E.D. New York, 1991)
People v. American Motor Club, Inc.
133 A.D.2d 593 (Appellate Division of the Supreme Court of New York, 1987)
Casale v. East River Towers Co.
139 A.D.2d 420 (Appellate Division of the Supreme Court of New York, 1988)
Clarke v. West Virginia Board of Regents
497 U.S. 1023 (Supreme Court, 1990)
Insurance Co. of Pennsylvania v. Ben Cooper, Inc.
498 U.S. 964 (Supreme Court, 1990)
J. A. Jones Construction Co. v. City of Atlanta
500 U.S. 928 (Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
155 B.R. 49, 29 Collier Bankr. Cas. 2d 248, 1993 Bankr. LEXIS 884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-motor-club-inc-v-neu-in-re-american-motor-club-inc-nyed-1993.