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UNITED STATES BANKRUPTCY COURT TKK-7825
EASTERN DISTRICT OF NEW YORK
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In the Matter of
Chapter 7
MICHAEL P. BUSACCO, Case No. 801-87462-511
Debtor.
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APPLICATION FOR AN ORDER AUTHORIZING THE TRUSTEE TO SETTLE A CONTROVERSY,
FIXING THE COMPENSATION AND REIMBURSEMENT OF EXPENSES TO SPECIAL COUNSEL,
FOR AUTHORIZATION TO DISBURSE THE FEES AND EXPENSES, AS FIXED, TO SPECIAL
COUNSEL, AND FOR AUTHORIZATION TO DISBURSE THE SUM OF $7,500.00 TO THE
DEBTOR
TO: THE HONORABLE MELANIE L. CYGANOWSKI
UNITED STATES BANKRUPTCY JUDGE:
The application of KENNETH KIRSCHENBAUM, Chapter 7 trustee,
by his counsel, Kirschenbaum & Kirschenbaum, P.C., respectfully states:
1. Kenneth Kirschenbaum is the trustee in this matter, having been duly
appointed on or about October 5, 2001. This application is being
submitted in support of the request for an order:
(a) authorizing the trustee to settle a controversy (as to the
debtor only) pending in the Supreme Court of the State of New York,
County of Nassau, entitled Michael Busacco and Alyssa Hyland, an infant
under the age of fourteen (14) years of age, by her parent and natural
guardian Jill Hyland, and Jill Hyland Individually, Plaintiffs, v.
Emanuel Crespo and Melanie S. Swift, Defendants, under Index No.
017920/01 for the sum of $25,000.00;
(b) fixing the compensation of Cassisi & Cassisi, P.C. in the sum of
$8,174.14 for services rendered as special counsel to the trustee and
awarding Cassisi & Cassisi, P.C. the sum of $477.57 as reimbursement of
expenses;
(c) authorizing the trustee to disburse to Cassisi & Cassisi, P.C. the
amount awarded as compensation for services rendered and reimbursement of
expenses without further order of the Court;
(d) authorizing the trustee to disburse the sum of $7,500.00 to the
debtor from the settlement proceeds without further order of the court in
the event the debtor files an amended schedule claiming the personal
injury exemption; and
(e) for such other and further relief as the Court deems just and
appropriate.
2. On October 5, 2001, the debtor filed a voluntary petition pursuant to
Chapter 7 of Title 11 of the U. S. Code.
3. On November 6, 2001, the first meeting of creditors was held pursuant
to Section 341 of the Bankruptcy Code. During the examination, the
trustee learned that prior to filing the debtor's petition, Michael
Busacco, the debtor, had retained the law firm of Cassisi & Cassisi, P.C.
to commence a personal injury action against Emanuel Crespo and Melanie
S. Swift for injuries sustained by the debtor on May 31, 2000. The
trustee contacted Frank Cassisi of Cassisi & Cassisi, P.C. and, based
upon his discussions with Mr. Cassisi, determined that the personal
injury action was of value to the estate. Mr. Cassisi was informed of
the trustee's intention to administer the action as an estate asset.
4. The subject state court proceeding was commenced as a result of
injuries sustained by the debtor when the motor vehicle he was driving
eastbound on Hempstead Boulevard in Uniondale, New York was struck by a
motor vehicle being driven northbound on Maple Avenue by Melanie S. Swift
("Swift"). The debtor's contention is that he had the green traffic
signal and that Swift disregarded the red traffic signal in her direction
of traffic. Swift denied this allegation.
5. As a result of the accident the debtor sustained injuries to his neck
and lumbar region, including a herniated disc.
6. Crespo and Swift's insurance carrier, Geico Insurance Company, has
offered to tender $25,000.00 in settlement of debtor's action.
7. Special counsel has advised the trustee that based upon the injuries
sustained, and the costs (such as expert fees) and risks inherent in
litigation, the proposed settlement is fair and reasonable, and has
recommended that it be accepted. Special Counsel has also advised the
trustee that he has discussed the proposed settlement with the debtor,
who also agrees that the settlement should be accepted. Under the
circumstances present in this case, the trustee believes that the
proposed settlement of the state court action for the total sum of
$25,000.00 should be authorized by the court.
8. The bar date for filing proofs of claim has expired and the claims
have been reviewed. No claims were timely filed; one claim was tardily
filed. That claim is a general unsecured claim in the total sum of
$7,315.58. As such, it is anticipated that settlement of the state court
proceeding as proposed will result in a distribution of approximately 65%
to the general unsecured creditor after payment of the $7,500.00 to the
debtor and all administrative expenses.
9. The trustee has been advised that special counsel will be filing a
separate application for an award of counsel fees in the sum of $8,174.14
and reimbursement of expenses in the sum of $477.57. The trustee has no
objection to special counsel's fees and expenses, which are based upon
the terms of their retainer agreement with the debtor and the Court Order
dated January 14, 2002 authorizing their retention as special counsel in
this matter.
10. In anticipation of special counsel's application for an award of
fees and expenses, the trustee is asking that the Court fix the award of
compensation to Cassisi & Cassisi, P.C. in the sum of $8,174.14 for legal
services rendered as special counsel to the trustee and grant special
counsel the sum of $477.57 as reimbursement of out-of-pocket expenses.
11. If the proposed settlement is approved by the Court the trustee is
further requesting permission to disburse to special counsel the award of
compensation and reimbursement of expenses as fixed by the Court without
further order of the Court, which the Trustee is agreeable to do provided
the distribution does not delay the filing of the Trustee's final report.
13. The trustee requests that in the event the debtor files an amended
Schedule C to his bankruptcy petition claiming the $7,500.00 exemption
from the proceeds of the personal injury action, the Court authorize the
trustee to disburse the sum of $7,500.00 to the debtor without further
order of the court provided that the distribution does not delay the
filing of the Trustee's final report.
14. Concurrently with the filing of this application, a notice to
creditors is being served advising all creditors, the debtor, acting pro
se, the United States Trustee, and any other
parties entitled to notice, of the relief requested by the trustee in
this application.
15. No prior application has been made to this court or to any other
court for the relief requested herein.
WHEREFORE, it is respectfully requested that the court grant
the within application in its entirety.
Dated: Garden City, New York
November 6, 2002
KIRSCHENBAUM & KIRSCHENBAUM, P.C.
Attorneys for the Trustee
By:______________________________
Steven B. Sheinwald (SS-6336)
200 Garden City Plaza
Garden City, New York 11530
(516) 747-6700
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