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David Giminiani v. Michael Cesar

September 24, 2012


The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge


Currently before the Court, in this bankruptcy appeal filed by David Giminiani ("Appellant") against Michael Cesar ("Respondent"), is Appellant's appeal from an Order of Dismissal issued by United States Bankruptcy Judge Robert E. Littlefield on August 12, 2011. (Dkt. No. 1.) For the reasons set forth below, Appellant's appeal is denied, and Judge Littlefield's decision is affirmed.


Following Respondent's filing of a Chapter 7 bankruptcy petition, Appellant filed a Complaint objecting to dischargeablility pursuant to 11 U.S.C. § 523. (Dkt. No. 5, Attach. 1.) Generally, Appellant's Complaint alleged that Appellant purchased Respondent's company, Acme Press, Inc. ("Acme"), under false pretenses, false representations, or actual fraud pursuant to 11 U.S.C. § 523(a)(2)(A). (See generally id.)*fn1 On April 26, 2010, Judge Littlefield held a trial on the matter. (Dkt. No. 5, Attach. 13.) The trial established the following facts.

Kevin Kryskowski ("Kryskowski"), a self-employed business broker, contacted Respondent about the possibility of buying a commercial printing company that Kryskowski was representing at the time. (Dkt. No. 5, Attach. 13 at 21.) Respondent, however, communicated to Kryskowski that he was interested in selling Acme because he was nearing retirement. (Id.) Kryskowski then became Respondent's agent in selling Acme. (Id.)

Due to his previous business relationship with Appellant, Kryskowski contacted Appellant about the possibility of purchasing Acme. (Id.; Dkt. No. 5, Attach. 13 at 41.) As a result, and upon Appellant's request, Respondent shared some of Acme's business information with Appellant for the purpose inducing the sale of Acme to Appellant. (Dkt. No. 5, Attach. 13 at 42-44.) This information included Acme's tax returns, information regarding inter-company transactions between another company owned by Respondent (called "PSD") and Acme, and a business plan drafted by Kryskowski to help Appellant obtain financing for the purchase of Acme. (Id. at 22, 44.) In the course of the parties' discussions prior to Appellant's purchase of Acme, Respondent told Appellant that Acme would benefit from "anyone working the company on a full-time basis" because Respondent was not working at Acme full time. (Id. at 37.)

On April 29, 2005, Appellant and Respondent signed a purchase-and-sales agreement for Acme, pursuant to which Appellant would purchase Acme from Respondent. (Id. at 32, 50, 53.) After that date, Appellant applied for financing through First Niagara Bank, and in late November 2005, First Niagara requested additional information from Appellant about Acme. (Id. at 50-51.) When Appellant forwarded First Niagara's request to Respondent, Respondent refused to furnish Appellant with the additional information. (Id. at 52.) Also in November 2005, Kryskowski told Appellant that Acme's "business was booming." (Id. at 54.) Although Respondent did not provide the information requested by First Niagara, the parties closed the purchase and sale of Acme on December 13, 2005. (Id. at 40, 55.)

Following closing, Appellant discovered that, between April 29, 2005, and December 13, 2005, Acme's sales percentage decreased by approximately 30 percent. (Id. at 55.) Respondent, however, did not inform Appellant of the sales-percentage decrease before the parties closed. (Id.)

After trial, on July 20, 2011, Judge Littlefield held a hearing where he issued an oral decision dismissing Appellant's remaining claim under 11 U.S.C. § 523(a)(2)(A). (Dkt. No. 5, Attach. 19 at 2; Dkt. No. 12.) On August 12, 2011, Judge Littlefield issued a written Order of Dismissal incorporating his oral decision from the hearing on July 20, 2011. (Dkt. No. 5, Attach. 19.) On September 20, 2011, Appellant timely filed his notice of appeal. (Dkt. No. 1.)


"Rule 8013 of the Federal Rules of Bankruptcy Procedure provides that a reviewing court may 'affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree,' or it may remand with instructions for further proceedings." In re Smorto, 07-CV-2727, 2008 WL 699502, at *4 (E.D.N.Y. Mar. 12, 2008) (citing Fed. R. Bankr. P. 8013). "The Court will review the Bankruptcy Court's legal conclusions de novo and its factual findings for clear error." In re Smorto, 2008 WL 699502, at *4.


A. Whether the Bankruptcy Judge Erred in Precluding Appellant's Expert From Testifying at Trial

After carefully considering the matter, the Court answers this question in the negative for the reasons stated in Respondent's Brief. (Dkt. No. at 4-6.) The ...

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