|
| |
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
In the Matter of
Chapter 7
CHUNG KI KIM and Case No. 802-81772-288
KI H. KIM,
Debtors. NOTICE OF MOTION
--------------------------------X
PLEASE TAKE NOTICE that upon the annexed affirmation of Steven B.
Sheinwald, dated April 30, 2002, the annexed exhibits, and upon all prior
proceedings, the undersigned will move this Court before Judge Stan Bernstein,
at the Long Island Federal Courthouse, 290 Federal Plaza, Room 860, Central
Islip, New York, on the 21st day of May 2002, at 9:30 a.m. or as soon
thereafter as counsel can be heard, for an order:
(a) pursuant to 11 U.S.C. Section 365, authorizing the trustee to assume and
assign to Chung Ki Kim and Ki H. Kim an unexpired lease for nonresidential real
property for the premises commonly known as 201 N. Long Beach Road, Rockville
Centre, New York;
(b) pursuant to 11 U.S.C. Section 363(b) and Bankruptcy Rule 6004, authorizing
the trustee to sell to Chung Ki Kim and Ki H. Kim his right, title and interest
in and to all assets of the business known as Sea World Fish including, but not
limited to, the business' good will, equipment, fixtures, inventory and the
lease to the business premises, subject to any and all liens, claims,
encumbrances or other interests which any entity may hold against the business
assets and/or the lease, for the sum of $20,000.00, to be paid in 12 equal
monthly installments;
(c) for such other and further relief as this Court may deem just and
proper.
PLEASE TAKE FURTHER NOTICE that opposing papers, if any, to the relief
requested by the trustee should be in writing, shall be filed with the Clerk of
the Bankruptcy Court on or before May 14, 2002, and served upon KIRSCHENBAUM &
KIRSCHENBAUM, P.C., 200 Garden City Plaza, Garden City, New York, 11530,
Attention: Steven B. Sheinwald, Esq. so as to ensure actual receipt no later
than 5:00 p.m. on May 17, 2002.
Dated: Garden City, New York
April 30, 2002
KIRSCHENBAUM & KIRSCHENBAUM, P.C.
Attorneys for the Trustee
By:______________________________
STEVEN B. SHEINWALD (SS-6336)
200 Garden City Plaza
Garden City, NY 11530 (
516) 747-6700
To: Chung Ki Kim and Ki H. Kim
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
In the Matter of
Chapter 7
CHUNG KI KIM and Case No. 802-81772-288 KI H. KIM,
Debtors. AFFIRMATION
--------------------------------X
Steven B. Sheinwald, an attorney duly admitted to practice in the courts of the
State of New York, and in this Court, affirms the following to be true under
penalty of perjury:
1. I am a member of KIRSCHENBAUM & KIRSCHENBAUM, P.C., the attorneys for
the Trustee. I am fully familiar with the facts and circumstances set forth in
this affirmation, which I submit in support of the trustee's motion for an
order:
(a) pursuant to 11 U.S.C. Section 365, authorizing the trustee to assume and
assign to Chung Ki Kim and Ki H. Kim an unexpired lease for nonresidential real
property for the premises commonly known as 201 N. Long Beach Road, Rockville
Centre, New York;
(b) pursuant to 11 U.S.C. Section 363(b) and Bankruptcy Rule 6004, authorizing
the trustee to sell to Chung Ki Kim his right, title and interest in and to all
assets of the business known as Sea World Fish including, but not limited to,
the business' good
will, equipment, fixtures, inventory and the lease to the business premises,
subject to any and all liens, claims, encumbrances or other interests which any
entity may hold against the business assets and/or the lease, for the sum of
$20,000.00, to be paid in 12 equal monthly installments; and
(c) for such other and further relief as this Court may deem just and proper.
2. A voluntary Chapter 7 petition was filed by the debtors on March 14,
2002. On or about March 14, 2002, Kenneth Kirschenbaum was appointed the
Chapter 7 trustee in this proceeding.
3. At the time of filing, the debtors held an interest in a lease for the
premises commonly known as 201 N. Long Beach Road, Rockville Centre, New York,
from which premises they operated a retail fish business. According to the
lease, which is annexed hereto as Exhibit A, the term of the lease is from
September 1, 2001 through October 31, 2006. Under the terms of the lease the
debtors are required to pay annual base rent of $10,879.67 for the first term
year. For each subsequent year thereafter they are required to pay an increase
of $1,200.00 per year over the preceding term year's base rent.
4. In addition to the base rent the debtors are also required to pay, as
additional rent, the following: maintenance, and a percentage of the landlord's
real estate taxes, insurance premiums, water bills, sewer bills, parking lot
light expense and sprinkler expense. Currently, the debtors' base rent plus
the additional rent totals the aggregate sum of $20,400.00 annually.
Therefore, the rent payable to the landlord for the subject premises through
the end of the first term year is $1,700.00 per month.
5. As of the date of the filing of the petition, the debtors were current with
their rent payments to the landlord. In addition, the rent for April 2002 had
been tendered to the landlord. Subsequent to the filing, the debtors tendered
an additional $1,700.00 to the trustee to enable the trustee to remain current
with the rent payments pending the hearing and determination of this motion.
6. I have held discussions with the President of the landlord in which he
informed me that he would consent to the following: (a) the trustee's
assumption of the lease between the debtors and Delicato Management, Inc, dated
September 1, 2001, relating to the subject premises, and the simultaneous
assignment of the lease by the trustee to the debtors; (b) a waiver of the
$3,000.00 transfer fee which is required under the terms of the lease Rider in
the event of an assignment of the lease upon the condition that all rents and
additional rents paid by the debtors to date shall remain the sole property of
Delicato Management, Inc., and that Delicato be permitted to continue holding
the security deposit previously tendered by the debtors in accordance with the
terms of the lease; and (c) that upon the assignment of the lease from the
trustee to the debtors, all outstanding post-petition rents due Delicato
Management, Inc., if any, would be paid in full, and that, thereafter, neither
the trustee nor the bankruptcy estate shall have any further liability to
Delicato Management. A copy of a letter from Joseph DiIorio, President of
Delicato Management, Inc., dated April 25, 2002, is annexed hereto as Exhibit
B.
7. The landlord further made it clear that he was consenting to the assumption
and assignment of the lease only if the lease is being assigned to the
debtors. He is familiar with the manner in which the debtors operate their
business and how they care for the premises. He stated that the debtors are
prompt in making their lease payments each month and he considers them to be
good tenants. The landlord further agreed to waive the $3,000.00 transfer fee
called for in the lease rider only if the lease was assigned to the debtors.
8. In addition to assuming and assigning the lease, the trustee is also
seeking to sell to the debtors his right, title and interest in and to all
remaining assets of the business known as Sea World Fish including, but not
limited to, the business' good will, equipment, fixtures and inventory, subject
to any and all liens, claims, encumbrances or other interests which any entity
may hold against the business assets. The debtors have offered to purchase all
the business assets, including the interest in the lease, for the sum of
$20,000.00. The debtors have offered to pay the total purchase price over a
period of 12 months at the rate of $1,667.00 per month.
9. According to the information provided by the debtors, they purchased the
assets of Sea World Fish Market in 1999 for a total sum of $20,000.00. All
equipment and fixtures in the store are over 15 years old. The store has not
been improved, nor have the fixtures been replaced, since the 1999 purchase.
10. I have held discussions with the trustee's auctioneer, who has inspected
the fixtures, machinery and equipment in order to ascertain whether a public
sale of the property would yield a greater recovery. I have been advised by
the auctioneer that it was unlikely that a public sale of the physical property
at the premises would yield a significantly higher recovery. More importantly,
however, he advised me that if the fixtures and machinery were sold, that their
removal from the premises would cause substantial damage, thereby creating a
huge administrative obligation to the landlord. Therefore, given the
additional administrative expenses involved with a public sale, including the
potential damage to the premises, the proposed sale to the debtors would result
in a greater benefit to the creditors.
11. The debtors have provided the trustee with copies of their federal tax
returns for the years 2000 and 2001 which include Schedule C - Profit or Loss
From Business. Copies of Schedule C for both years are annexed hereto as
Exhibit C. According to Schedule C for the year 2000, the business had gross
receipts of $194,020.00 and showed a net profit of $20,428.00. For the year
2001, the business had gross receipts of $163,619.00 and showed a net profit of
$17,738.00.
12. After considering the factors set forth above, the Trustee believes that a
sale of the property for the sum of $20,000.00 is in the best interests of the
creditors and the sale should be authorized by the Court.
13. This motion is being served upon the debtors, the debtors' attorney, the
landlord, the United States Trustee, the Internal Revenue Service, the N.Y.S
Department of Taxation & Finance and all scheduled creditors and parties in
interest in accordance with Bankruptcy Rules 6004 and 2002.
14. At this time it is requested that the Court dispense with the requirement
set forth in E.D.N.Y. LBR 9013-1(b) that a memorandum of law accompany 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 motion in
its entirety.
Dated: Garden City, New York
April 30, 2002
____________________________________ STEVEN
B. SHEINWALD
----------------------------------
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
In the Matter of
Chapter 7
CHUNG KI KIM and Case No. 802-81772-288 KI H. KIM,
Debtors.
--------------------------------X
ORDER AUTHORIZING THE TRUSTEE TO ASSUME AND ASSIGN A LEASE and AUTHORIZING THE
SALE OF PROPERTY SUBJECT TO ANY AND ALL LIENS, CLAIMS, ENCUMBRANCES OR OTHER
INTERESTS FOR THE SUM OF $20,000.00
The trustee, KENNETH KIRSCHENBAUM, by his attorneys, Kirschenbaum &
Kirschenbaum, P.C., having moved by Notice of Motion dated April 30, 2002 for
an Order:
(a) pursuant to 11 U.S.C. Section 365, authorizing the trustee to assume and
assign to Chung Ki Kim and Ki H. Kim an unexpired lease for nonresidential real
property for the premises commonly known as 201 N. Long Beach Road, Rockville
Centre, New York;
(b) pursuant to 11 U.S.C. Section 363(b) and Bankruptcy Rule 6004, authorizing
the trustee to sell to Chung Ki Kim and Ki H. Kim his right, title and interest
in and to all assets of the business known as Sea World Fish including, but not
limited to, the business' good will, equipment, fixtures, inventory and the
lease to the business premises, subject to any and all liens, claims,
encumbrances or other interests which any entity may hold against the business
assets and/or the lease, for the sum of $20,000.00, payable in 12 equal monthly
installments; and
(c) for such other and further relief as this Court may deem just and proper,
and upon the affirmation of Steven B. Sheinwald, dated April 30, 2002, together
with the exhibits annexed to the affirmation, and proof of service having been
filed, and all creditors and other parties in interest having had an
opportunity to file written objections to the motion, and this matter having
come on before Judge Stan Bernstein on May 21, 2002, and no creditor or other
party in interest having filed an objection to the trustee's motion, and the
time for creditors and parties in interest to file objections having expired,
and after due deliberation,
NOW, upon the application of KENNETH KIRSCHENBAUM, Chapter 7 trustee, it
is hereby
ORDERED, that the trustee is authorized to assume and assign to Chung Ki Kim
and Ki H. Kim an unexpired lease for nonresidential real property covering the
premises commonly known as 201 N. Long Beach Road, Rockville Centre, New York;
and it is further
ORDERED, pursuant to 11 U.S.C. Sections 363(b) and (f) and Bankruptcy Rule
6004, that the trustee is authorized to sell to Chung Ki Kim and Ki H. Kim his
right, title and interest in and to all assets of the business known as Sea
World Fish including, but not limited to, the business' good will, equipment,
fixtures, inventory and the interest in the lease covering the business
premises, subject to any and all liens, claims, encumbrances or other interests
which any entity may hold against the business assets and/or the lease, for the
sum of $20,000.00, which sum may be paid in 12 equal monthly installments.
Dated: Central Islip, New York
May , 2002
_______________________________
STAN BERNSTEIN
UNITED STATES BANKRUPTCY JUDGE
|