Kaschner v. Venticinque (In re Venticinque)
| Decision Date | 12 October 2022 |
| Docket Number | Case No. 1-20-42258-ess,Adv. Pro. No. 20-1096-ess |
| Citation | 643 B.R. 708 |
| Parties | IN RE: Antonino VENTICINQUE, aka Antonio Venticinque aka Antonio A Venticinque aka Antonino a Venticinque, Debtor. Bernadette Kaschner, Plaintiff, v. Antonino Venticinque, aka Antonio Venticinque aka Antonio A Venticinque aka Antonino a Venticinque, Defendant. |
| Court | U.S. Bankruptcy Court — Eastern District of New York |
643 B.R. 708
IN RE: Antonino VENTICINQUE, aka Antonio Venticinque aka Antonio A Venticinque aka Antonino a Venticinque, Debtor.
Bernadette Kaschner, Plaintiff,
v.
Antonino Venticinque, aka Antonio Venticinque aka Antonio A Venticinque aka Antonino a Venticinque, Defendant.
Case No. 1-20-42258-ess
Adv. Pro. No. 20-1096-ess
United States Bankruptcy Court, E.D. New York.
Signed October 12, 2022
Bernadette Kaschner, 1513 Beach Avenue, Cape May, NJ 08204, Plaintiff, pro se.
Charles Zolot, Esq.1 , 37-06 82nd Street, Jackson Heights, NY 11372, Attorney for Defendant Antonino Venticinque.
Antonino Venticinque, 34-57 82nd Street, Apartment 6B, Jackson Heights, NY 11372, Defendant, pro se.
MEMORANDUM DECISION ON THE MOTION TO DISMISS THE AMENDED COMPLAINT
HONORABLE ELIZABETH S. STONG, UNITED STATES BANKRUPTCY JUDGE
Introduction
Plaintiff Bernadette Kaschner commenced this adversary proceeding against Defendant Antonino Venticinque, in his capacity as a general contractor, in connection with a renovation project (the "Project") of Ms. Kaschner's real property located at 1513 Beach Ave, Cape May, NJ 08204 (the "Property"). Am. Compl., ECF No. 30, ¶ 7. She seeks a determination from this Court that Mr. Venticinque's debt to her arising from a New Jersey Superior Court judgment (the "Judgment") is nondischargeable under Bankruptcy Code Section 523(a)(2)(A) or, in the alternative, denying Mr. Venticinque's discharge under Bankruptcy Code Section 727(a)(4)(A). Am. Compl. ¶ 50. She asserts that the Judgment was the result of Mr. Venticinque's fraudulent conduct over the course of the Project. Am. Compl. ¶¶ 32-37.
Before the Court is Mr. Venticinque's motion to dismiss the Amended Complaint (the "Motion to Dismiss") pursuant to Federal Rule of Civil Procedure 12(b)(6), made applicable to adversary proceedings by Bankruptcy Rule 7012(b).
Jurisdiction
This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(A), (I) and (J), and 1334(b), and the Standing Order of Reference dated August 28, 1986, as amended by the Order dated December 5, 2012, of the United States District Court for the Eastern District of New York. This is a core proceeding pursuant to 28 U.S.C. § 157(b), and venue is proper before this Court pursuant to 28 U.S.C. § 1409.
Background
The following matters are alleged in the Amended Complaint and are taken as true for purposes of this Motion to Dismiss.
The Project
In December 2003, Ms. Kaschner and Mr. Venticinque, as the principal of Vensa Contracting Corporation ("Vensa"), entered into a construction contract (the "Contract"), in which Mr. Venticinque agreed to provide general contracting services and certain materials for Ms. Kaschner in accordance with an architect's plan and specifications to renovate a historic four-story oceanfront property and cottage located at 1513 Beach Avenue, Cape May, New Jersey, into six condominium units. Am. Compl. ¶ 7. The Contract provided that the work would be completed nine months after it commenced. Id .
During the course of the Project, Ms. Kaschner alleges that disputes arose between Mr. Venticinque and her concerning, among other matters, the progress of the Project, the quality of contracting services and materials provided, and certain purchases of appliances to be installed at the Property. Am. Compl. ¶ 11. She also alleges that after the Project deadline passed in December 2004, Mr. Venticinque abandoned the Project. Id . And Ms. Kaschner claims that she ultimately had to hire other contractors and laborers to complete the Project. Am. Compl. ¶ 12.
The State Court Action
Ms. Kaschner asserts that in 2007, as part of her attempt to elicit a response from Mr. Venticinque, Ms. Kaschner filed a complaint with the New Jersey Office of the Attorney General, Division of Consumer Affairs, Alternative Dispute Resolution Unit. Am. Compl. ¶ 21. In a letter dated December 12, 2007, the Division informed Ms. Kaschner that it had attempted to contact Vensa several times without success, and that it would refer the complaint back to the Office of Consumer Protection for review and possible legal action. Opp. Ex. B, ECF No. 38.
In 2009, Ms. Kaschner commenced an action against Mr. Venticinque and Vensa in the Superior Court of New Jersey, Law Division, Cape May County (the "New Jersey State Court Action"), asserting claims for breach of contract, breach of express warranties, breach of implied warranties, consumer fraud, declaratory judgment, and breach of duty to perform work in a reasonably good and workmanlike manner. Am. Compl. ¶ 32. In August 2011, the New Jersey Superior Court entered a default judgment in Ms. Kaschner's favor based on Mr. Venticinque's and Vensa's failures to appear and to defend the action, and holding Mr. Venticinque and Vensa jointly and severally liable to Ms. Kaschner for $285,962.04, $857,886.12 in treble damages, and $5,413.71 in attorney's fees. Am. Compl. ¶ 36.
Mr. Venticinque's Chapter 7 Bankruptcy Case
On June 4, 2020, Mr. Venticinque filed a petition for relief under Chapter 7 of the Bankruptcy Code. Case No. 20-42258, ECF No. 1. On July 14, 2020, Mr. Venticinque appeared at the Section 341 meeting of creditors (the "Section 341 Meeting"), at which Ms. Kaschner appeared and questioned
Mr. Venticinque. And on September 16, 2020, Mr. Venticinque received a discharge. Case No. 20-42258, ECF No. 18.
This Adversary Proceeding
The Complaint
On August 4, 2020, Ms. Kaschner commenced this adversary proceeding by filing a complaint against Mr. Venticinque. ECF No. 1. In the Complaint, she asserts claims under Bankruptcy Code Sections 523(a)(2)(A) and (a)(4), and asks this Court to declare that Mr. Venticinque's debts owed to her are nondischargeable. Compl. ¶ 3.
The Amended Complaint
On February 16, 2021, Ms. Kaschner filed an Amended Complaint, in which she removes the claim under Bankruptcy Code Section 523(a)(4) and adds a claim under Bankruptcy Code Section 727(a)(4)(A). Am. Compl. ¶ 3. In the first count, she alleges that the Judgment amount is nondischargeable because "it is a debt for money, property, services, or an extension, renewal, or refinancing of credit, that was obtained by false pretenses, a false representation, or actual fraud within the meaning of Bankruptcy Code [Section] 523(a)(2)(A)." Am. Compl. ¶ 40. And in the second count, she alleges that Mr. Venticinque knowingly made a false oath or account concerning, among other things, his assets and work history. Am. Compl. ¶¶ 41-43. Ms. Kaschner asks this Court to find that the judgment is nondischargeable under Section 523(a)(2)(A), to deny Mr. Venticinque's discharge under Section 727(a)(4)(A), and to grant such other and further relief as may be just and proper. Am. Compl. ¶¶ 41-43.
On March 30, 2021, Mr. Venticinque responded to the Amended Complaint by moving to dismiss pursuant to Rule 12(b)(6). Memorandum of Law in Support of the Motion to Dismiss, ECF No. 35-5 (the "Motion to Dismiss" or "Mot."). On June 11, 2021, Ms. Kaschner filed opposition to the Motion to Dismiss (the "Opposition" or "Opp.") and attached several exhibits in support of her Opposition. Opp., ECF No. 38. And on September 14, 2021, she supplemented her Opposition by filing the transcript of the Section 341 Meeting. ECF No. 40.
From time to time, the Court held continued pre-trial conferences and heard arguments on the Motion to Dismiss, at which Ms. Kaschner and Mr. Venticinque, by his counsel and then pro se , appeared and were heard, and the record is now closed.
The Allegations of the Amended Complaint
The Court accepts the following facts from Ms. Kaschner's pleadings as true for the purpose of deciding this Motion to Dismiss. See DiFolco v. MSNBC Cable L.L.C ., 622 F.3d 104, 110-11 (2d Cir. 2010) (accepting the plaintiff's factual allegations as true).
Ms. Kaschner alleges that on or about December 10, 2003, she and Mr. Venticinque, as the principal of Vensa, entered into a contract for the renovation and conversion of the Property into six condominium units, and to complete the work within nine months from the start date. Am. Compl. ¶¶ 7, 40. She alleges that Mr. Venticinque provided written references as to his ability and experience and a list of recently completed restoration and renovation projects in New Jersey. Am. Compl. ¶¶ 7, 40. The scope of work included, among other things, general contracting, management of sub-contractors, re-framing the interior structure, the purchasing of all materials, installation services, the replacement of the existing concrete entry and stoop, and the interior construction of the additional cottage on the property. Am. Compl. ¶ 7.
Ms. Kaschner also alleges that Mr. Venticinque promised to complete the Project within nine months and abandoned the partially-completed Project in December 2004. Am. Compl. ¶¶ 7, 40. She states that Mr. Venticinque did not provide timely and adequately contractor services and materials as required by the Contract, and separately, that he caused delays of the Project and abandoned the Project without making requested repairs. Am. Compl. ¶ 9. She alleges that Mr. Venticinque's work was not completed in a workmanlike manner, and that he did not substantially perform under the Contract, completing only ten of the twenty-eight tasks listed in the Contract. Am. Compl. ¶¶ 9a, 16. And she states that Mr. Venticinque double-billed and overcharged her for certain work and materials that he was obligated under the Contract to provide. Am. Compl. ¶ 10.
In addition, Ms. Kaschner alleges that before Mr. Venticinque abandoned the Project, she paid $579,000 to him, under duress, for labor and materials that she was later forced to repurchase at her own expense. Am. Compl. ¶ 13. She alleges that at various times, she notified Mr. Venticinque of these issues and concerns, and demanded that he address them. Am. Compl. ¶¶ 11, 40. In response, Ms. Kaschner alleges, Mr. Venticinque repeatedly provided...
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