In re Taub

413 B.R. 55, 2009 Bankr. LEXIS 2388, 2009 WL 2601266
CourtUnited States Bankruptcy Court, E.D. New York
DecidedAugust 14, 2009
DocketNo. 08-44210-ess
StatusPublished
Cited by11 cases

This text of 413 B.R. 55 (In re Taub) 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
In re Taub, 413 B.R. 55, 2009 Bankr. LEXIS 2388, 2009 WL 2601266 (N.Y. 2009).

Opinion

MEMORANDUM DECISION ON MOTION FOR RELIEF FROM THE AUTOMATIC STAY

ELIZABETH S. STONG, Bankruptcy Judge.

Before the Court is the motion for relief from the automatic stay (the “Lift Stay [58]*58Motion”) by Simon Taub, the estranged husband of Chana Taub, the debtor in this Chapter 11 case (the “Debtor”). Mr. Taub moves for an order pursuant to 11 U.S.C. § 362(d)(1), terminating the automatic stay to allow him and the Debtor to proceed to conclusion and the entry of judgment with the matrimonial action (the “Second Divorce Action”) pending in the New York State Supreme Court, County of Kings (the “Supreme Court, Kings County”), with enforcement to take place in this Court.

A hearing on the Lift Stay Motion was held on July 22, 2009, at which counsel for Mr. Taub, counsel for the Debtor, and counsel for Esther Newhouse appeared and were heard. Based upon the entire record and consideration of the relevant factors, the arguments of counsel, and for the reasons stated below, the Lift Stay Motion is granted as set forth below.

Jurisdiction

The Court has jurisdiction over this contested matter pursuant to 28 U.S.C. §§ 1334(b) and 157(b)(1).

Procedural History

On July 1, 2008, the Debtor filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Eastern District of New York. The Debtor continues to operate and manage her business and property as a debtor in possession in accordance with 11 U.S.C. §§ 1107 and 1108.

On June 1, 2009, Mr. Taub filed the Lift Stay Motion to permit the Second Divorce Action pending in the Supreme Court, Kings County to proceed to conclusion and the entry of judgment on all issues, including equitable distribution, with enforcement to take place in this Court. Docket No. 260. In support of the Lift Stay Motion, Mr. Taub filed an application (the “S. Taub App.”) and his affirmation.

On June 23, 2009, Chana Taub filed a Brief of Debtor in Opposition to Simon Taub’s Lift Stay Motion (the “Debtor’s Opp.”), as well as her affirmation and the affirmation of Dennis Houdek (the “Hou-dek Affirm.”). Docket Nos. 271-73.

On June 25, 2009, Esther Newhouse, a creditor in the Debtor’s bankruptcy case, filed a Joinder in Support of Brief of Debt- or in Opposition to Simon Taub’s Lift Stay Motion (the “Newhouse Joinder”). Docket No. 276.

On July 6, 2009, Mr. Taub filed a reply to the Debtor’s Opposition to Simon Taub’s Lift Stay Motion. Docket No. 281.

On June 1, 2009, Mr. Taub also filed motions to abstain in Chana Taub v. Simon Taub, Adversary Proceeding No. 08-1170 (the “08-1170 Abstention Motion”), and in Chana Taub v. Simon Taub, 10 Grand Avenue LLC, Rachel Taub, and Perl Fein, Adversary Proceeding No. 09-1027 (the “09-1027 Abstention Motion”). In these motions, Mr. Taub seeks orders providing that the Court abstain from deciding the claims in the adversary proceedings on grounds that the claims are based on equitable distribution claims asserted by the Debtor in the Supreme Court, Kings County.

Background

The Debtor and Mr. Taub have been engaged in contentious and acrimonious litigation, including two divorce actions, in the New York state courts since 2005. The Debtor commenced a divorce action against Mr. Taub in the Supreme Court, Kings County on June 17, 2005 (the “First Divorce Action”). Debtor’s Opp. at 2. The First Divorce Action was dismissed after a jury trial on March 27, 2007. Debtor’s Opp. at 4; S. Taub App. ¶ 1. During the pendency of the First Divorce Action, [59]*59three of the four judges to whom the matter was assigned recused themselves. S. Taub App. ¶¶ 6-7.

As the schedules filed with the Debtor’s bankruptcy petition reflect, the Debtor claims an interest in several properties. The Debtor’s schedules state that she claims an interest in three properties titled solely in her name located at 1259 52nd Street, 4819 14th Avenue, and 1405 49th Street, in Brooklyn, New York, and in property titled jointly in the Debtor’s and Mr. Taub’s names located at 85 Forshay Road, Monsey, New York. Docket No. 12 (Schedule A). These four properties are the subject of Adversary Proceeding No. 08-1424 filed by Pnina Kaufman as guardian for Moshe Taub, Mr. Taub’s father, against the Debtor, in which Ms. Kaufman seeks the imposition of a constructive trust in favor of Moshe Taub on grounds that he placed these properties in the Debtor’s name in reliance on promises that she would reconvey them to him upon his request. Adv. Pro. No. 08-1424, Docket No. 1. And the properties are the subject of an action in the Supreme Court, Kings County brought by Ms. Kaufman on February 21, 2006, seeking similar relief (the “Kaufman State Court Action”) Adv. Pro. No. 08-1170, Docket No. 1 (Complaint ¶ 28).

The Debtor also claims an equitable interest in three properties which were titled solely in Mr. Taub’s name and conveyed by Mr. Taub to his daughters following the First Divorce Action. Docket No. 12 (Schedule A). These three properties are located at 6-8 Grand Avenue, 10 Grand Avenue, and 23-27 Grand Avenue, in Brooklyn, New York (the “Grand Avenue Properties”), and are the subject of Adversary Proceeding No. 09-1027, the 09-1027 Abstention Motion, and the Kaufman State Court Action.

Soon after the dismissal of the First Divorce Action, in May 2007, the Debtor commenced the Second Divorce Action (the “Second Divorce Action”) in the Supreme Court, New York County, and that action was subsequently transferred to the Supreme Court, Kings County. S. Taub App. ¶ 2. In that action, the court deferred to the Kaufman State Court Action the issues of the appointment of a receiver and ownership of the alleged marital properties. Houdek Affirm. Exh. F (October 30, 2007, Order (Demarest, J.)). See Debt- or’s Opp. at 7-8.

Since filing her Chapter 11 bankruptcy petition, the Debtor has commenced several state court proceedings that relate to the Second Divorce Action and the equitable distribution issues. The Debtor sought the recusal of Justice Carolyn E. Demar-est, the fourth judge to whom the Second Divorce Action was assigned, on grounds of bias. S. Taub App. ¶ 9; 08-1170 Abstention Motion, Exh. A (February 11, 2009, Decision and Order (Demarest, J.)). The Debtor’s request was denied and an appeal of that decision is pending.1 S. Taub App. ¶ 19. See Docket No. 300 (July [60]*6023, 2009, letter from Chana Taub) (questioning the fairness of the state court proceedings).

On July 23, 2008, the Debtor filed a motion in the Second Divorce Action for an accounting by Mr. Taub of “all marital properties including the Grand Avenue properties.” 09-1027 Abstention Motion, Exh. F (Chana Taub Aff. at 4). The Debt- or commenced a lawsuit in Israel based upon alleged equitable distribution claims to apartments occupied by Mr. Taub’s daughters. S. Taub App. ¶ 18.

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Cite This Page — Counsel Stack

Bluebook (online)
413 B.R. 55, 2009 Bankr. LEXIS 2388, 2009 WL 2601266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-taub-nyeb-2009.