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DIXIE YARNS, INC. v. FORMAN

November 20, 1995

DIXIE YARNS, INC., as the Successor in Interest to CHINA GROVE COTTON MILLS CO., Plaintiff, against ARTHUR FORMAN, WALLACE FORMAN, CAROL FORMAN, EDITH FORMAN, ARTHUR FORMAN ENTERPRISES, LTD., and INDUSTRION, INC., Defendants.


The opinion of the court was delivered by: HAIGHT

 HAIGHT, District Judge:

 This diversity case is before the Court on plaintiff's motion for partial summary judgment pursuant to Rule 56, Fed. R. Civ. P. For the reasons that follow, the motion will be granted.

 BACKGROUND

 The parties' litigious relationship has spanned a number of years. In two previous Memoranda Opinions and Orders, dated April 3, 1990 and June 17, 1993, in this and a related cases, I confirmed plaintiff's arbitration award against the defendant, Industrion, Inc., and denied plaintiff's motion for summary judgment, respectively. Familiarity with these prior rulings is presumed. I reiterate the facts to the extent necessary for this opinion.

 Defendants Arthur Forman, Wallace Forman, Carol Forman, and Edythe Forman are residents of New York and former officers, directors, and shareholders of defendant Industrion, Inc. ("Industrion"). Industrion was at all relevant times a New York corporation engaged in the purchase and sale of textile fabric. Defendants Arthur and Wallace Forman were also officers, directors, and shareholders of defendant Arthur Forman Enterprises, Ltd. ("AF Enterprises"). AF Enterprises was at all pertinent times a New York corporation engaged in the sale of textile products.

 From September 15, 1986 through January 13, 1987 China Grove and Industrion entered into contracts pursuant to which China Grove sold yarn to Industrion. Following Industrion's failure to pay several of China Grove's invoices, China Grove brought an action for $ 1,215,040.29 against Industrion in a North Carolina state court on April 28, 1988.

 On August 30, 1988, pursuant to an arbitration clause in the underlying contract, Industrion served a Demand for Arbitration on China Grove before the American Arbitration Association in New York City. The North Carolina action was stayed on May 13, 1988 and dismissed on April 3, 1989.

 An arbitration award of $ 1,228,217.81 was entered in favor of China Grove and against Industrion on October 19, 1989. China Grove petitioned this Court to confirm the award. 89 Civ. 7179. I confirmed the award in the Memorandum Opinion and Order of April 3, 1990. The Clerk entered judgment against Industrion on May 1, 1990 for $ 1,284,667.58. Both parties agree that, to date, Industrion has not paid a cent of this award.

 Following confirmation of the arbitration award, Dixie acquired China Grove. By that time, Industrion was in failing financial health. The bulk of Industrion's sales had been to the Department of Defense ("DOD"). DOD's proposal, in September 1987, to debar Industrion from government contract work had a devastating effect upon Industrion. Industrion subsequently became insolvent and ceased operations in or about June 1990. Dixie filed the captioned action against the individual defendants and Industrion, alleging that the individual defendants looted Industrion of assets with which Industrion could have paid the judgment. Dixie's earlier, self-styled summary judgment motion, more properly characterized as one under Rule 12(f), was denied in the Memorandum Opinion and Order dated June 17, 1993.

 Dixie now moves for summary judgment on the third claim pleaded in its amended complaint. The first claim lists a number of transfers and conveyances of Industrion assets to one or another of the individual Forman defendants. P 22(a)-(f). The third claim alleges that those transfers and conveyances were fraudulent and void as to China Grove, Dixie's predecessor in title, pursuant to § 273-a of the New York Debtor and Creditor Law.

 Specifically, Dixie argues that the defendants disguised these transfers as repayments for loans that they had given to Industrion over the years. Defendant Arthur Forman states in his opposing affidavit that, by early 1989, the four Forman defendants had lent "many millions" of dollars to Industrion and approximately $ 4,000,000 was still outstanding. Prior to forwarding more funds to the family business, the defendants decided to draw up security agreements and these were executed on June 6, 1989. According to the Forman affidavit, the defendants resumed loaning sums to Industrion on June 30, 1989. From that date, defendants' loans to Industrion totalled over $ 1,000,000. The last recorded loan was forwarded to Industrion in April 1990.

 Both parties agree that, beginning with the week of May 5, 1988, the four individual Forman defendants began taking weekly "draws" in lieu of salary, characterizing those withdrawals as repayments of their antecedent loans. The weekly sum of these "draws" significantly increased over time until the last draw was paid to Edyth Forman on April 26, 1990. See Exhibits I, J and K attached to Plaintiff's Affidavit in Support of Summary Judgment. It is apparently undisputed that the four individual defendants transferred $ 578,612.74 to themselves from 1988 through 1990. In addition, it is apparently undisputed that Arthur Forman (acting on his own or on behalf of his company, AF Enterprises) received funds that had been owed to Industrion from various account debtors: $ 8,517.20 from M.S.I. International in June 1990; $ 9,208.58 from Franklin Management Corp. in June 1990 and another $ 5,636.58 from Franklin Management Corp. in June 1991; $ 111,530.97 from R.J. Textiles in August 1990; and three payments of $ 34,214 each from Westmont in January 1991, 1992 and 1993. In addition, it is agreed that Arthur Forman took all of Industrion's remaining inventory. The primary action in that regard occurred in April 1990, when Arthur Forman took approximately 500,000 yards of camouflage 1.1 Ripstop nylon cord. The value of the Ripstop is in dispute. Defendant Arthur Forman claims it was worth $ 300,000 at the time, while Dixie places its value at between $ 875,000 and $ 1,000,000. Dixie alleges that all of these conveyances -- whether as weekly "draws" or transfers of accounts receivable and inventory -- were fraudulent as to Dixie as a judgment debtor.

 Dixie's third cause of action claims damages pursuant to New York Debtor and Creditor Law § 273-a and attorney's fees under New York Debtor and Creditor Law § 276-a. Plaintiff alleges that there are no disputed genuine issues of material fact. Plaintiff considers the defendants' Local Civil Rule 3(g) statement to be completely deficient and argues that the defendants have therefore failed to raise a single issue of fact.

 DISCUSSION

 I. Summary Judgment

 Under Fed. R. Civ. P. 56(c), the moving party is entitled to summary judgment if the papers "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." On such a motion, "a court's responsibility is to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991) (citing Knight v. U.S. Fire Insurance, 804 F.2d 9 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987)) (citation omitted). The responding party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). "The non-movant cannot 'escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts,'... or defeat the motion through 'mere speculation or conjecture.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (citations omitted). While the party resisting summary judgment must show a dispute of fact, it must also be a material fact in light of the substantive law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 II. Local Civil Rule 3(g)

 Local Civil Rule 3(g) of this Court states in part:

 
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material set forth in the statement required to be served by the moving party will be deemed to be admitted ...

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