In re Marceca, Bankruptcy No. 90 B20782

CourtUnited States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
Writing for the CourtHOWARD SCHWARTZBERG
Citation129 BR 371
PartiesIn re Robert K. MARCECA, Debtor. 43 EAST 74TH ST. ASSOCIATES, Debtor-in-Possession, Benjamin S. Richman, Arthur Shulman and Irving Barr, Plaintiffs, v. Robert K. MARCECA, Defendant.
Docket NumberBankruptcy No. 90 B20782,No. 90 ADV. 6184.
Decision Date29 July 1991

129 B.R. 371 (1991)

In re Robert K. MARCECA, Debtor.
43 EAST 74TH ST. ASSOCIATES, Debtor-in-Possession, Benjamin S. Richman, Arthur Shulman and Irving Barr, Plaintiffs,
Robert K. MARCECA, Defendant.

Bankruptcy No. 90 B20782, No. 90 ADV. 6184.

United States Bankruptcy Court, S.D. New York.

July 29, 1991.

Paul R. Leverson, Cowan, Liebowitz & Latman, P.C., New York City, for plaintiffs.

Haythe & Curley, New York City, for debtor.

129 BR 372



The Chapter 7 debtor, Robert K. Marceca, has moved pursuant to Fed.R.Civ.P. 12(b)(6) and Bankruptcy Rule 7012 to dismiss the plaintiffs' adversary proceeding for failure to state a claim upon which relief can be granted. The plaintiffs filed a complaint to determine the nondischargeability of their claims against the debtor under 11 U.S.C. § 523(a)(4).

Factual Background

On August 14, 1990, the debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code. The debtor's schedules listed plaintiffs, Benjamin S. Richman, Arthur Shulman and Irving Barr as holders of disputed and contingent claims in the amount of $100,000.00. The plaintiffs' complaint alleges that Richman, Shulman and Barr are partners in a New York partnership known as 43 East 74th St. Associates (the "partnership"). Debtor, Marceca, is alleged to have been a former partner of the partnership.

The complaint alleges that the partnership owned a building located at 43 East 74th Street, New York, New York and that the debtor was responsible for managing the business of the building, maintaining the accounts of the partnership, accounting to the other partners and distributing the partners' respective shares of the income of the partnership during the period between 1984 and 1987.

The First Claim in the complaint asserts that the debtor "embezzled, misappropriated and converted to his own use and benefit approximately $230,000 of partnership funds." It is further alleged that the debtor agreed in May of 1988 to repay $222,826.00 of the partnership funds misappropriated by him. Accordingly, the debtor executed a promissory note to all the plaintiffs in the sum of $267,124.68, to cover principal and interest. He made 24 payments, totalling $111,580.56 and then defaulted on the balance. It is alleged that the balance of $155,544.12, plus costs and reasonable attorney's fees, constitutes a nondischargeable claim pursuant to 11 U.S.C. § 523(a)(4) and (c).

The Second Claim in the complaint alleges that in 1985 plaintiff, Richman, entered into an agreement with the debtor, pursuant to which the debtor would pay a 6% commission or finder's fee to the extent Richman located investors who would supply real estate investment capital to the debtor. Richman claims that the debtor "embezzled, misappropriated and converted" commissions belonging to Richman in an amount in excess of $250,000.00 and that such claim should be deemed nondischargeable pursuant to 11 U.S.C. § 523(a)(4) and (c). Additionally, punitive damages of $500,000.00 are also claimed.


In considering a motion to dismiss a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, as made applicable under Bankruptcy Rule 7012, on the ground that the complaint fails to state a claim upon which relief can be granted, the court must accept as true all of the well-pleaded facts alleged in the complaint. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57 (2d Cir.1985). The motion must be granted when it appears with certainty that no set of facts could be proven at trial which would entitle the plaintiff to any relief. Conley v. Gibson, Id.; Dioguardi v. Durning, 139 F.2d 774 (2d Cir.1944); In re Rudaw/Empirical Software Products, Ltd., 83 B.R. 241 (Bankr.S.D.N.Y.1988); Trans World Airlines, Inc., et al. v. Texaco Inc. (In re Texaco Inc.), 81 B.R. 813 (Bankr.S.D.N.Y.1988). In the instant case, the plaintiffs reason that the facts set forth in the First Claim in their complaint would entitle them to relief under 11 U.S.C. § 523(a)(4).

The First Claim

The debtor maintains that the plaintiffs do not state a cause of action because

129 BR 373
a partner cannot be guilty of embezzling partnership property since each partner has an interest in partnership property and, therefore, cannot embezzle the partner's own property. This argument elides the thrust of 11 U.S.C. § 523(a)(4), which is not limited to the nondischargeable conduct of embezzlement and does not discharge an individual debtor from any debt —
(4) for fraud or defalcation while

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