Chorches v. Fifty Spot Ass'n, LLC (In re Julian)

Joel B. Rosenthal

Ronald I. Chorches, Esq.
Joanna M. Kornafel, Esq.
Law Offices of Ronald I. Chorches
Counsel for the Plaintiff Thomas J. Farrell, Esq.
Hinckley Allen and Snyder LLP
Counsel for Defendants Fifty Spot Association,
LLC, Ballina Properties, LLC and David D'Addario
Ellery E. Plotkin, Esq. Counsel for Defendant Park View Ventures, LLC Peter L. Ressler, Esq.
Groob Ressler & Mulqueen
Counsel for the Debtor and Debtor-in-Possession

Joel B. Rosenthal, United States Bankruptcy Judge

This matter came before me on Defendants' (Ballina Properties, LLC, David D'Addario and Fifty Spot Association) Motion to Dismiss Counts 1 - 6 of this Adversary and the Objection by the Trustee.

The Court heard oral argument and has reviewed the Amended Complaint as well as the briefs of the parties.

The Court is cognizant of the pleading standards, however, in the bankruptcy context, the so called "disclaimer" "upon information and belief must often be accepted from a Trustee, as rarely will a Trustee have the first hand personal knowledge that a transaction party would have. Further, when dealing with alleged "insiders", the Trustee is entitled to at least the presumption that the facts of the Complaint are true for purposes of the Motion to Dismiss.

Although the Trustee may not be able to prove the allegations of each Count, at this point in the proceedings, the Court, accepting all factual allegations as true and drawing reasonable inferences in Plaintiff's favor, cannot find the Amended Complaint deficient.

The Motion to Dismiss is DENIED and the Trustee's Objection is SUSTAINED.

Defendants are ordered to file their answers by June 30, 2013.

It is SO ORDERED.

BY THE COURT

______________________

Joel B. Rosenthal

United States Bankruptcy Judge