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COMPUTERLAND CORP. v. BATAC

February 8, 1990

COMPUTERLAND CORPORATION, PLAINTIFF,
v.
BATAC, INC., BUSINESS AND TECHNICAL COMPUTING, INC., JERRY M. LIEBERMAN AND LORRAINE LIEBERMAN, AND ADVANCED BUSINESS COMPUTERS, INC., DEFENDANTS.



The opinion of the court was delivered by: Kram, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff has obtained an ex parte order of attachment against defendant Advanced Business Computers ("ABC") subject to N.Y. C.P.L.R. § 6201(3) (McKinney's 1988), and has moved for confirmation under N.Y. C.P.L.R. § 6211(b) (McKinney's 1988). This Court previously confirmed orders of attachment against the other defendants in this case, but reserved judgment regarding ABC until a hearing could be held. A hearing having been conducted, this Court now orders that the attachment of ABC's assets be confirmed.

BACKGROUND

The facts and legal standards relevant to this motion have been fully developed in this Court's Memorandum Opinion and Order, dated March 22, 1989 (hereinafter "Mem.Op."), familiarity with which is presumed. They will be repeated here only to the extent necessary. On November 26, 1988, an official from plaintiff ComputerLand Corporation (hereinafter "ComputerLand Corp.") contacted its franchisee, defendant Lieberman, and informed him that in light of certain problems which were then emerging he wished to make a store visit as provided in the franchise agreement. Lieberman refused to allow him access, and on November 30, 1988 ComputerLand delivered notices of default under the agreement. Plaintiff terminated the franchise on December 1, 1988 and, pursuant to the franchise agreement, directed Lieberman "to immediately close the ComputerLand store premises and remain closed to business." On December 6, 1988, this Court granted plaintiff's request for a TRO prohibiting then-named defendants from transferring or selling equipment or inventory except in the ordinary course of business. Nonetheless, subsequent to the issuance of the TRO, Lieberman liquidated his inventory by making two large sales of equipment to defendant ABC, totalling $85,000. On December 17, 1988, the day after this Court granted ComputerLand's requested preliminary injunction, a ComputerLand representative entered the store and found the premises to be empty.

DISCUSSION

This Court has already determined that the $85,000 liquidation sales by Lieberman were fraudulent conveyances under § 276 of New York Debtor Creditor Law, because Lieberman "actually intended" to defraud plaintiff, a present creditor. Because the Court has decided that the conveyance to ABC was fraudulent, it must now determine whether ABC was a bona fide purchaser for value, as provided in § 278. Mem.Op. at 16, Federal Deposit Ins. Co. v. Malin, 802 F.2d 12, 18 (2d Cir. 1986). Section 278 defines a bona fide purchaser as one who both has paid "fair consideration" and also is "without knowledge of the fraud at the time of the purchase." If either of these characteristics is lacking, then the fraudulent conveyance may be set aside. § 278. In the present case, since the computer equipment has been resold by ABC, that would mean placing a freeze on the bank account into which proceeds of the equipment sale was deposited.

In New York, "fair consideration" is defined in the Debtor and Creditor Law as an exchange of equivalent value coupled with "good faith" on the part of both the purchaser and the seller. § 272; see also, Clarkson Co. v. Shaheen, 533 F. Supp. 905, 931 (S.D.N.Y. 1982) (good faith an "indispensable component" of fair consideration); In re Ahead by a Length, 100 B.R. 157, 169 (Bkrtcy. S.D.N.Y. 1989) (concept of fair consideration under § 272 embraces value and good faith; good faith is required of both the transferor and the transferee and demands honest, open and fair dealing). Under New York law, a transaction is void for lack of "good faith" when

  one or more of the following factors is lacking: (1) an honest
  belief in the propriety of the activities in question; (2) no
  intent to take unconscionable advantage of others; and (3) no
  intent to, or knowledge of the fact that the activities in
  question will hinder, delay, or defraud others. The term `good
  faith' does not merely mean the opposite of the phrase `actual
  intent to defraud.'

Southern Industries v. Jeremias, 411 N.Y. So.2d 945, 949, 66 A.D.2d 178, 182 (2d Dep't 1978). Thus, this Court must determine whether ABC's post-TRO purchases of equipment from Lieberman were in good faith, or instead, whether any of these three indicia of good faith were lacking.

Plaintiff claims that ABC's lack of good faith is inferable from the close nexus between ABC and Lieberman's ComputerLand operation. This Court agrees that there is a suspicious amount of contact between the two businesses. The Court previously found that ABC had a special business relationship with Lieberman and BTC, a much closer relationship than that claimed by ABC. Evidence adduced at hearing has further illuminated the character of the two entities' interactions, and points to the presence of several of the Southern Industries indicia of lack of good faith.

Defendant ABC is a New York corporation formed on March 23, 1988. Jack Kramer testified that he is the sole shareholder of ABC as well as its only officer and director. Hearing Tr., at 56; Kramer Dep. Tr., at 47-50. Most or all of ABC's business consisted of "gray marketing" ComputerLand products, i.e., purchasing products from licensed dealers for resale.*fn1 Indeed, ABC made over 90% of its product purchases from Lieberman alone. Hearing Tr., at 66; Pl.Exh. 59, 59A-59I; Pl.Exh. 58, 58A-58G. ComputerLand's franchise agreement with Lieberman and its other franchisees expressly prohibits gray market activity, and Kramer was aware of this prohibition.*fn2 Hearing Tr., at 69-70, 119-121.

ABC's office was located in the basement of Lieberman's store, ComputerLand Madison Square (CMS), at 20 West 23rd Street, New York, New York. Lieberman provided ABC with some office furniture, Hearing Tr., at 107, and access to an auxiliary phone line which was billed to CMS. Hearing Tr., at 83. Some of ABC's business was conducted from CMS's telephone upstairs, and Kramer and his off-the-books employee Jyotika Patel sometimes made personal calls from the upstairs line. Appendix B of Plaintiff's Post-Hearing Memorandum of Law. Evidence was introduced of a phone call to Lieberman's bank that was made from ABC's line. Id. ABC had no business cards or letterhead of its own. Hearing Tr., at 65. On at least one occasion, Kramer used a CMS business card to transact business with a customer, Orin Knopp. Hearing Tr., at 8, 12. Mr. Knopp also testified that he recalled Kramer using CMS' credit card imprinter to record a sale. Hearing Tr., at 10-11.

Kramer had substantial access to ComputerLand Corp.'s confidential pricing and product availability information through Lieberman's secretary. He purchased for resale well over one million dollars worth of computer equipment from Lieberman alone. Hearing Tr., at 66, 106. He never took out insurance on the products he purchased. Hearing Tr., at 76, and reportedly provided no warranties or technical support for the products he sold. Plaintiff's Post-Hearing Mem. at 6; Defendant's Post-Hearing Mem. at 7. He was also paid commissions by Lieberman, at first by checks which totalled $15,562, and later through 2-3% reductions in sales price. Hearing Tr., at 77, 80; Kramer Dep. Tr., at 68-74. Kramer claimed that he subleased office space from CMS for $400 per month. However, there are no rent receipts or cancelled checks. Kramer explained at hearing that the rent was simply offset with product purchases from CMS; even so, ABC reported no tax deductions for business rental or phone bill expenditures relating to the 23rd Street store. Instead, the business deductions claimed on Kramer's tax returns apparently derived from personal living expenses. Hearing Tr., at 99105; Kramer Dep. Tr., at 91-105.

All of these factors point to a suspiciously close relationship between ABC and CMS. Even in the context of this unusual business relationship, several aspects of their dealings late in 1988 stand out. At first, Kramer got invoices from Lieberman for purchases,*fn3 but after September 1988 these invoices ceased. ABC and Lieberman transacted $606,325 worth of uninvoiced business during October-December 1988 (Pl.Exh. 55F, 55G, 55H, 55I, 43).*fn4 As for the two post-TRO product sales, the ones this Court is specifically interested in, Kramer paid the $85,000 by certified checks, made out to Lieberman in his individual capacity. Kramer maintains that ...


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