In re Planavsky, Case No. 01-63125 (Bankr. N.D.N.Y. 2/17/2010), Case No. 01-63125.
| Decision Date | 17 February 2010 |
| Docket Number | Adv. Pro. No. 09-80001.,Case No. 01-63125. |
| Parties | In re: DANNY R. PLANAVSKY, Chapter 11, Debtor. DANNY R. PLANAVSKY, Plaintiff, v. COUNTY OF BROOME, COUNTY OF TIOGA, CITY OF BINGHAMTON, TOWN OF UNION, TOWN OF DICKENSON, TOWN OF CHENANGO, VILLAGE OF ENDICOTT, VILLAGE OF JOHNSON CITY, BINGHAMTON CITY SCHOOL DISTRICT, OWEGO-APALACHIN SCHOOL DISTRICT, UNION ENDICOTT CENTRAL SCHOOL DISTRICT, and JOHNSON CITY CENTRAL SCHOOL DISTRICT, Defendants. |
| Court | U.S. Bankruptcy Court — Northern District of New York |
LESLIE N. REIZES, ESQ. Boynton Beach, Florida, Attorney for the Plaintiff.
JENNIFER F. BOJDAK, ESQ., COUGHLIN & GERHART, Binghamton, New York, Attorney for Defendants Town of Dickenson, Village of Johnson City and Johnson City School District.
ALAN J. POPE, ESQ., POPE & SCHRADER, LLP, Binghamton, New York, Attorney for Defendants Town of Union, Village of Endicott and Union Endicott Central School District.
ROBERT G. BEHNKE, ESQ., Edwin L. Crawford County Office Building Binghamton, New York, Attorney for Defendant County of Broome.
MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Presently under consideration by the Court are several requests for dismissal of the amended complaint, filed on June 30, 2009, by Danny R. Planavsky ("Debtor") (Dkt. No. 47). Specifically, a motion seeking dismissal of the amended complaint was filed on August 7, 2009, on behalf of Broome County (Dkt. No. 57). In addition, there are requests for dismissal contained in answers filed on behalf of other municipalities, including the Town of Union, the Union Endicott School Central School District, and the Village of Endicott (Dkt. No. 51); the Binghamton City School District, the Johnson City Central School District, the Town of Dickenson and the Village of Johnson City (Dkt. No. 54) (collectively, the "Defendants").1 The Debtor filed a response to what the Court will consider as the "Motions" on August 26, 2009 (Dkt. No. 59).
The Motions were heard at the Court's regular calendar in Binghamton, New York, on September 3, 2009. Following oral argument, the Court indicated that it would conduct a pre-trial conference on October 16, 2009. At the pre-trial conference, the parties discussed a number of issues concerning the properties owned by the Debtor for which he was seeking a determination by the Court pursuant to § 505 of the U.S. Bankruptcy Code, 11 U.S.C. §§ 101-1330 ("Code").2 The Court asked that the parties submit memoranda of law on two specific issues by October 30, 2009. The Motions were adjourned to November 3, 2009, and then to December 8, 2009, for control purposes. On December 8, 2009, the Court indicated that it would take the matters under submission and render a decision.3 The following constitutes the Court's findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure ("Fed.R.Bankr.P.").
The Court has core jurisdiction over the parties and subject matter of this adversary proceeding pursuant to 28 U.S.C. §§ 1334(b), 157(a), (b)(2) (A) and (O).
The Debtor filed a voluntary petition pursuant to Chapter 11 of the Code on May 16, 2001. On February 22, 2002, the Debtor filed a motion in the case to determine tax liability with respect to several parcels of real property (Dkt. No. 25). Also on February 22, 2002, the Debtor filed a motion to value the same parcels of real property "for all purposes including 11 U.S.C. § 505" (Dkt. No. 46). The Debtor later withdrew his motion to determine tax liability in a letter dated July 24, 2002, in which it was indicated that the Debtor intended to pursue the relief by way of an adversary proceeding (Dkt. No. 68).
With respect to the Debtor's request for valuation, the Honorable Stephen D. Gerling, Chief U.S. Bankruptcy Judge for the Northern District of New York4 signed an Order on March 20, 2002, valuing the following parcels of real property relevant to the matter herein, as of the petition date:
11 Avenue B, Johnson City, New York — $10,000
51 Adams Street, Binghamton, New York — $70,000
77 Wilson Hill Road, Binghamton, New York — $30,000
82 Wilson Hill Road, Binghamton, New York — $134,000
(Dkt. No. 60). The Order provides that "[t]he foregoing valuations are without prejudice to the right of BSB Bank & Trust to contest such valuations in any respect relevant to its interests in this case."5 It further provided that "the portion dealing with properties in the Town of Union and Broome County outside the City of Binghamton be adjourned . . . ." Id.
On October 29, 2002, the Debtor commenced an adversary proceeding (Adv. Pro. No. 028-0262) ("2002 Adversary Proceeding") by the filing of a complaint pursuant to Code § 505 against the County of Broome, the County of Tioga, the City of Binghamton, the Town of Union, the Town of Dickenson, the Town of Chenango, the Village of Johnson City, the Binghamton City School District, the Union Endicott Central School District, the Johnson City Central School District, the Village of Endicott and the Johnson City School District. On November 24, 2003, the Court granted a motion for relief from the automatic stay to the City of Binghamton on consent of the parties with respect to the following properties:
72-76 Court Street, Binghamton, New York
333-335 Clinton Street, Binghamton, New York
128 Laurel Avenue, Binghamton, New York
In addition, the Order of November 24, 2003, dismissed with prejudice any relief sought by the Debtor with respect to those three properties (Dkt. No. 70 in 2002 Adversary Proceeding). On January 29, 2004, the Court signed a similar Order granting relief from the automatic stay to allow the County of Broome to proceed with its foreclosure proceeding against property located at 205 Main Street in the Village of Johnson City, New York (Dkt. No. 72 in 2002 Adversary Proceeding).
On February 4, 2004, the Court signed an Order dismissing the 2002 Adversary Proceeding as to the County of Tioga and the Owego-Apalachin School District (Dkt. No. 75 in 2002 Adversary Proceeding). By Order, dated April 2, 2004, the Court dismissed the 2002 Adversary Proceeding as to the County of Broome "without prejudice to Debtor contesting the amount of the tax debt owed to the County of Broome." (Dkt. No. 77 in 2002 Adversary Proceeding). On June 15, 2004, the Court dismissed the City of Binghamton as a party to the 2002 Adversary Proceeding on consent of the Debtor (Dkt. No. 80 in 2002 Adversary Proceeding).
On January 26, 2006, a motion for summary judgment was filed on behalf of the Town of Union and the Village of Endicott in the 2002 Adversary Proceeding. On June 7, 2006, the Court signed an Order granting the motion "to the extent that the complaint alleges liability in its first cause of action against the Town of Union, the Village of Endicott and the Village of Johnson City6 for properties located in the Towns of Chenango and Dickinson" (Dkt. No. 124 in 2002 Adversary Proceeding). The Court denied the motion with respect to the remainder of the first cause of action and granted it with respect to the second cause of action.7 The respective municipalities sought reconsideration of the June 7, 2006 Order, and on August 2, 2006, the Court granted said motion "insofar as it sought the exclusion of those properties which were previously adjudicated in another forum and which constituted postpetition assessments8 . . . it is ordered that only the following properties for the following years are subject to 505 adjudication:
11 Avenue B, Johnson City: 1995; 20009
145 Harry L. Drive, Johnson City: 1995 to 200010
28 Avenue B, Johnson City: 1997; 2000
76 Arch Street, Johnson City: 1997 to 200011
286 Main Street, Johnson City: 1999 to 200012
207 South Loder Avenue, Endicott: 1994 to 199713
40-48 Corliss Avenue, Johnson City: 2000
59 Lester Avenue, Johnson City: 2000"14
(Dkt. No. 135 in 2002 Adversary Proceeding).
On January 19, 2007, the Town of Union and the Village of Endicott sought dismissal of the 2002 Adversary Proceeding on the grounds that in addition to various delays in discovery, the Plaintiff had failed to comply with a scheduling order of the Court, including the requirement that appraisals be exchanged on or before January 31, 2007. On June 11, 2007, the Court signed an Order dismissing the 2002 Adversary Proceeding as against the Town of Union, the Village of Endicott, the Village of Johnson City and the Johnson City School District (Dkt. No. 155 in 2002 Adversary Proceeding). Said Order was appealed to the U.S. District Court for the Northern District of New York and affirmed by the District Court by Order dated April 28, 2008 (Dkt. No. 176 in 2002 Adversary Proceeding). On August 22, 2008, the Court ordered the appointment of a mediator to address the complaint as it applied to the remaining defendants, namely the Town of Dickinson, the Town of Chenango and the Union Endicott School District (Dkt. No. 178 in 2002 Adversary Proceeding). No further action has been taken in the 2002 Adversary Proceeding.
On January 11, 2009, the Debtor commenced another adversary proceeding (Adv. Pro. No. 09-80001) ("2009 Adversary Proceeding") pursuant to Code § 505 by filing a complaint against the same defendants previously named in the 2002 Adversary Proceeding. Issue was joined by the filing of answers on behalf of Broome County (February 5, 2009) and the Binghamton City School District, the Johnson City Central School District, the Town of Dickenson and the Village of Johnson City (February 10, 2009). On February 23, 2009, the Town of Union and the Village of Endicott filed a motion to dismiss the 2009 Adversary Proceeding (Dkt. No. 7 in 2009 Adversary Proceeding). On April 13, 2009, the Village of Johnson City and the Johnson City School District joined in the Motion to Dismiss filed by the Town of Union and...
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