Pisculli v. T.S. Haulers, Inc.

426 B.R. 52, 2010 U.S. Dist. LEXIS 27410
CourtDistrict Court, E.D. New York
DecidedMarch 18, 2010
DocketNo. 09 CV 2785(SJF)
StatusPublished
Cited by9 cases

This text of 426 B.R. 52 (Pisculli v. T.S. Haulers, 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
Pisculli v. T.S. Haulers, Inc., 426 B.R. 52, 2010 U.S. Dist. LEXIS 27410 (E.D.N.Y. 2010).

Opinion

ORDER

FEUERSTEIN, District Judge.

On June 30, 2009, appellant Nicholas F. Pisculli, Jr. (“appellant”) filed a notice of appeal from a memorandum decision of the United States Bankruptcy Court for the Eastern District of New York (Grossman, U.S.B.J.), entered March 4, 2009, which denied, after trial, appellant’s discharge in bankruptcy pursuant to Section 727(a)(2)(B) of the Bankruptcy Code, 11 U.S.C. § 727(a)(2)(B). For the reasons set forth below, the decision of the bankruptcy court is affirmed.

I. BACKGROUND

A. Factual Background1

Appellee Raneo Sand & Stone Corp. (“Raneo”) is a corporation doing business at 151 South Street, Manorville, New York. (Complaint in Adversary Proceeding [Compl.], ¶ 3). Appellant conducted business under the name LJC Truck Services (“LJC”) and was the sole owner and shareholder of J & R Materials Corp. (“J & R Materials”) and A.N. Leasing Corp. (“A.N. Leasing”) (collectively, “appellant’s businesses”). (Parties’ Joint Statement of Facts filed in the Adversary Proceeding [Jt. Stat.], ¶ 2). Appellant operated his businesses out of his former home, located at 106 Emerson Street, Dix Hills, New York (the “Dix Hills Property”), (Jt. Stat., ¶3), which was owned by his wife Ann Frandolig Pisculli (“appellant’s wife”). ■ (Jt. Stat., ¶ 20). Appellant’s wife worked for all three (3) of appellant’s businesses without compensation, except for a period of time when she received health insurance. (Jt. Stat., ¶¶ 16-17). Appellant’s wife also had power of attorney over appellant’s businesses, which authorized her to sign checks and make payments on behalf of the businesses. (Jt. Stat., ¶ 19).

At all relevant times, LJC and J & R Materials were in the business of carting sand and gravel. (Jt. Stat., ¶¶ 5-6). A.N. Leasing was incorporated for the sole purpose of holding title to the trucks used by LJC and J & R Materials to cart sand and gravel. (Jt. Stat., ¶ 8). J & R Materials “customarily and regularly used the trucks [owned by A.N. Leasing] in its business,” (Jt. Stat., ¶ 9), and its employees, who were “leased” from Island Leasing Services Inc. (“Island Leasing”)2, (Jt. Stat., ¶ 13), “customarily and regularly drove the trucks [owned by A.N. Leasing],” (Jt. Stat., ¶¶ 10, 15). In addition, at the direction of appellant, J & R Materials “cus[57]*57tomarily and regularly paid the repair and maintenance bills for the trucks owned by A.N. Leasing.” (Jt. Stat., ¶ 11).

LJC and J & R Materials purchased sand and gravel from Raneo. (Jt. Stat., ¶ 7), According to Raneo, during the period from September 20, 2003 through June 11, 2005, it delivered to LJC, at appellant’s request, grit and concrete sand at the agreed upon price of four hundred thirty-nine thousand eight hundred twelve dollars and ninety-seven cents ($439,812.97). (Compl., ¶ 4). According to Raneo, appellant never paid any amount toward the total sum due and owing Raneo. (Compl., ¶ 6).

On or about April 28, 2005, appellant’s wife refinanced the Dix Hills Property. (Jt. Stat., ¶ 21). On or about May 7, 2005, appellant’s wife deposited the sum of one hundred twenty thousand one hundred thirty-three dollars and twenty-two cents ($120,133.22) (“the refinance proceeds”) into a Citibank account which she held jointly with appellant. (Jt. Stat., ¶22). From the refinance proceeds, appellant’s wife paid a total of one hundred eleven thousand nine hundred eighty dollars and three cents ($111,980.03) to certain creditors of J & R Materials, including thirty thousand dollars ($30,000.00) to Raneo. (Jt. Stat., ¶ 23).

B. Procedural Background

On or about October 15, 2005 (“the commencement date”), appellant filed a voluntary petition for relief under Chapter 13 of the Bankruptcy Code in the United States Bankruptcy Court, Eastern District of New York, entitled In re: Nicholas F. Pisculli, Jr., no. 05-89678-mlc (“the bankruptcy proceeding”). Appellant listed Raneo in his Schedules as an unsecured creditor with a claim in the amount of four hundred thirty-nine thousand eight hundred twelve dollars and ninety-seven cents ($439,812.97).

On or about March 13, 2006, while the Chapter 13 petition was pending, appellant, as an officer of A.N. Leasing, sold the assets of A.N. Leasing, consisting of three (3) trucks and three (3) trailers, to All Service Funding for the sum of two hundred forty-seven thousand five hundred dollars ($247,500.00) (“the truck sale proceeds”). (Jt. Stat., ¶ 24). Seventy-six thousand one hundred eighty-nine dollars and nine cents ($76,189.09) of the truck sale proceeds were first used to satisfy all recorded liens against the trucks owed by A.N. Leasing. The balance of one hundred seventy-one thousand three hundred ten dollars and ninety-one cents ($171,-310.91) of the truck sale proceeds was then transferred, at appellant’s direction, to: (1) appellant’s wife, who was not a creditor of A.N. Leasing and who used forty-eight thousand nine hundred sixty-one dollars and fifty-one cents ($48,961.51) of the truck sale proceeds to pay expenses of J & R Materials and the remainder of the eighty thousand dollars ($80,000.00) in truck sale proceeds to pay personal living expenses, (Jt. Stat., ¶ 31); (2) Island Leasing, as payment for payroll and human resources obligations of J & R Materials; and (3) Suffolk Manufacturing Company, a company owned by appellant’s brother-in-law, “for safekeeping.” (Jt. Stat., ¶¶ 25-29).

On April 12, 2006, the bankruptcy proceeding was converted to a Chapter 7 proceeding and Robert Pryor was appointed Chapter 7 Trustee (“the trustee”). The fourteen thousand two hundred eighty-one dollars and nine cents ($14,281.09) from the truck sale proceeds that had been transferred to Suffolk Manufacturing Company were eventually turned over to the trustee. (Jt. Stat., ¶ 26).

[58]*58On or about August 1, 2006, Raneo commenced an adversary proceeding against appellant pursuant to, inter alia, 11 U.S.C. § 727(a)(2)(B), in the United States Bankruptcy Court, Eastern District of New York, entitled Ranco Sand & Stone Corp. v. Pisculli (In re Pisculli), no. 806-08337-reg (“the adversary proceeding”)3, objecting to appellant’s discharge in bankruptcy. Raneo claimed, inter alia, that appellant’s discharge should be denied pursuant to 11 U.S.C. ¶ 727(a)(2)(B) because the transfer of the truck sale proceeds to third parties after the commencement date of the bankruptcy proceeding was undertaken “with the intent to hinder, delay or defraud [Raneo] and [appellant’s] estate * * *.”4 (Compl., ¶¶ 18, 22). Appellant contended, however, that the funds paid to: (1) Island Leasing were paid on account of debts owed by J & R Materials to Island Leasing; and (2) appellant’s wife constituted payments by appellant to his wife on account of her having used the refinancing proceeds of her own house to satisfy the corporate debts of J & R Materials.

On January 13, 2009, a trial was held on the complaint, over which the Honorable Robert E. Grossman, United States Bankruptcy Judge, presided. By memorandum decision entered March 5, 2009 (the “memorandum decision”), Judge Gross-man found, inter alia,

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Cite This Page — Counsel Stack

Bluebook (online)
426 B.R. 52, 2010 U.S. Dist. LEXIS 27410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pisculli-v-ts-haulers-inc-nyed-2010.