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

129 B.R. 981, 1991 Bankr. LEXIS 1054
CourtDistrict Court, E.D. New York
DecidedJuly 29, 1991
DocketBankruptcy No. 887-70763-260; Adv. No. 189-0027-260
StatusPublished
Cited by2 cases

This text of 129 B.R. 981 (Senise v. American Motor Club (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
Senise v. American Motor Club (In re American Motor Club, Inc.), 129 B.R. 981, 1991 Bankr. LEXIS 1054 (E.D.N.Y. 1991).

Opinion

DECISION ON AMERICAN MOTOR CLUB’S MOTION TO COMPEL DISCOVERY

CONRAD B. DUBERSTEIN, Chief Judge.

Before the Court is Defendant American Motor Club’s (hereinafter “AMC” or “Defendant” or “Debtor”) motion to compel discovery of plaintiff John Senise (hereinafter “Senise”) and codefendant Marie Neu (hereinafter “Neu”).1 For the reasons set forth below, the motion is granted.

[983]*983FACTS

Defendant AMC, a New York corporation was in the business of selling automobile pre-paid collision service contracts to New York residents. A decision of the Supreme Court, State of New York, New York County, dated January 14, 1987, held that the contracts constituted an illegal insurance business. By order and Judgment dated April 18, 1987, AMC was permanently enjoined from engaging in the business of repairing or compensating consumers for motor vehicles damaged as a result of accident or theft, and was assessed a penalty of $5,001,000.00 for its violation of New York State Insurance Law. Shortly thereafter, on May 19, 1987, AMC filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code in this Court.

The within adversary proceeding was commenced in or about March 1989.

Defendant British Insurance Management Company, Ltd. (“BIM”), a corporation organized and existing under the laws of the Turks and Caicos Islands, is the owner of the stock of AMC. Plaintiff Senise, Defendant Neu and Neu’s husband Nicolas Neu, were directors of AMC.

THE COMPLAINT

Count I of the complaint alleged that for good and valuable consideration AMC executed and delivered a mortgage (the “Mortgage”) on certain real property of the Debtor and note (“Note”) for $300,000.00 with interest accruing at the rate of twelve percent per year in favor of Sénise and Neu. Furthermore, it was alleged that AMC defaulted on the Mortgage and Note, and thus the entire amount became due. Senise also contended that a substantial amount is owing and he is entitled to immediate payment.

The property which was the subject of the Mortgage was sold pursuant to an order of this Court dated August 14, 1987.2 Senise alleged that there is an order of this Court that the proceeds of the sale are to be held by the Debtor, and that he has a superior and prior lien and interest in those proceeds. This Court has been unable to locate such order.

In Count II of the complaint it is alleged that AMC and BIM entered into an agreement with Senise in which AMC and BIM agreed to hold Senise harmless, and indemnify him against all liability, cost and expense in regard to any restitution ordered by any court and any claims and/or suits against Senise, arising out of the business of AMC. Senise alleged that he has and is involved in such suits and claims of restitution have been made against him. Furthermore, he is being forced to incur and has incurred extensive attorney’s fees and costs and expenses by reason thereof. Senise claims that pursuant to that agreement he is entitled to have AMC and/or BIM indemnify him.

THE ANSWER

Defendant AMC interposed an answer which included 15 affirmative defenses. The first seven affirmative defenses are also counterclaims against Senise and cross-claims against codefendant Neu. Affirmative defenses eight, nine and ten operate as counterclaims against Senise.

Briefly stated, Affirmative Defenses, Counterclaims against Senise, and Cross-claims against Neu one through six, assert that the delivery to Neu and Senise of the Mortgage and Note constituted either a fraudulent conveyance or a preference.

Affirmative Defense, Counterclaim against Senise and Cross-Claim Against Neu number seven, alleges that by causing the execution of the Mortgage and the Note, Neu and Senise engaged in illegal self-dealing in direct violation of their fiduciary duty as directors to deal fairly and impartially with AMC and its creditors, hence any claim of Neu or Senise should be subordinated.

Affirmative Defense and Counterclaim Against Senise eight and nine, assert that the mortgage is void.

[984]*984Affirmative Defense and Counterclaim Against Senise number ten, alleges that inasmuch as Senise violated his fiduciary duty by wasting corporate assets and breaching his fiduciary duty to AMC, this Court should subordinate the claims of Senise arising out of the indemnification agreements to assure that injustice or unfairness is not done in the administration of this case.

Affirmative Defenses eleven through fifteen, claim that Senise’s claims for indemnification should be barred: (a) since the acts for which indemnification is sought were committed in bad faith and were the result of active and deliberate dishonesty of Senise; (b) since Senise personally gained a financial profit or other advantage to which he was not legally entitled; (c) since no determination has been made that Senise acted in accordance with the standards of conduct set forth in N.Y. Business Corporations Law §§ 721 and 7223; and, (e) since the alleged indemnification agreements are null, void and not binding upon AMC as they were not authorized by AMC’s board of directors as required by AMC’s bylaws.

AMC’S REQUESTS FOR DISCOVERY

AMC served a First Set of Interrogatories Addressed to Neu; First Request for Production of Documents Addressed to Neu4; First Set of Interrogatories Addressed to Senise; and, First Request for Production of Documents Addressed to Senise.5

The interrogatories addressed to Neu and Senise were identical. Interrogatories numbered eleven and twelve state:

11. Identify all bank accounts, including, without limitation, checking accounts, savings accounts, money market accounts and certificates of deposit maintained by you at any time during the period January 1, 1984 through and including April 30, 1987 and identify all documents which refer or relate to said accounts.
[985]*98512. Identify all documents, referring or relating to your finances or financial status during the period January 1, 1984 through April 30, 1987, including, without limitation, financial statements, profit and loss statements, statements of assets and liabilities, statements of net worth and federal, state and local income tax returns.

Thereafter, Neu Served Answers To Interrogatories. Senise served a Response To Interrogatories and a Response To Request For Production Of Documents.

Both Neu and Senise objected to interrogatories eleven and twelve (the “Interrogatories”). Neu and Senise also formally objected to the Debtor’s request for the production of documents. Nonetheless, both have produced some documents. Neu attached certain documents to her answers to the Interrogatories. Senise endeavored to comply with some requests for document production.

The Debtor thereupon moved this Court for an order pursuant to Federal Rule of Civil Procedure 37 made applicable to this proceeding through Bankruptcy Rule 7037 compelling Senise and Neu to fully comply with the Debtor’s discovery request.

ARGUMENTS OF THE PARTIES

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Cite This Page — Counsel Stack

Bluebook (online)
129 B.R. 981, 1991 Bankr. LEXIS 1054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/senise-v-american-motor-club-in-re-american-motor-club-inc-nyed-1991.