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UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
In the Matter of
Chapter 7
THERESA A. RICCARDI A.K.A. Case No. 01-85845-288
THERESA MOFFETT,
Debtor.
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APPLICATION FOR AN ORDER AUTHORIZING THE TRUSTEE TO SETTLE A CONTROVERSY AND
FOR AUTHORIZATION TO DISBURSE THE SUM OF $7,500.00 TO THE DEBTOR
TO: STAN BERNSTEIN
UNITED STATES BANKRUPTCY JUDGE:
The application of KENNETH KIRSCHENBAUM, Chapter 7 trustee,
respectfully states:
1. I am the trustee in this matter, having been duly appointed on or
about July 26, 2001. I am also a member of Kirschenbaum & Kirschenbaum, P.C.,
the attorneys for the Chapter 7 trustee. I submit this application in
support of my request for an order:
(a) authorizing me to settle a controversy pending in the Supreme Court
of the State of New York, County of Suffolk, entitled Theresa A. Riccardi,
Plaintiff vs. Marie C. Tagheu-Cethoute, M.C. Tagheu-Cethoute and V.
Youchom-Tagheu, Defendants, under Index No. 16493/00, for the sum of
$30,000.00;
(b) authorizing me to disburse the sum of $7,500.00 to the debtor from
the settlement proceeds, representing her claimed personal injury exemption,
without further order of the Court;
(c) fixing the fees of special counsel in the sum of $9,829.14 and the
reimbursement of expenses to special counsel in the sum of $512.58;
(d) authorizing the payment of the fees and expenses awarded to special
counsel without further order of the Court; and
(e) for such other and further relief as the Court deems just and
appropriate.
2. On July 26, 2001, the debtor filed a voluntary petition pursuant to
Chapter 7 of Title 11 of the U. S. Code.
3. On August 23, 2001, the first meeting of creditors was held pursuant
to Section 341 of the Bankruptcy Code. According to Schedule B annexed to
the petition the debtor was a party to a pending lawsuit arising out of a car
accident. During the examination I learned that THERESA RICCARDI (the
"debtor"), had commenced an action in state court stemming from injuries
sustained by her on November 30, 1999. Prior to the filing of the debtor's
petition, the debtor had retained the law firm of KELLY, LUGLIO & ARCURI, LLP
and commenced a personal injury action against Marie C. Tagheu-Cethoute, M.C.
Tagheu-Cehtoute and V. Youchom-Tagheu. I contacted the debtor's counsel,
Andrew A. Arcuri, and based upon my discussions with him, I determined that
the personal injury action was of value to the estate. I further informed
him of my intention to administer the cause of action as an estate asset.
4. The injuries sustained by the debtor were a result of the following
chain of events: The debtor was operating her motor vehicle in the right lane
of the Southern State Parkway (westbound) in the vicinity of Straight Path
(Exit 36S) West Babylon, New York, when she was struck in the rear by a
vehicle owned by the defendants.
5. As a result of the accident the debtor sustained injuries to the
head, neck and left leg. Diagnostic testing revealed bulging cervical discs.
However, the debtor did not sustain any herniated discs nor did she fracture
any parts of the body. The debtor has been able to return to work and is
able to perform all activities except for picking up her son. Additionally,
she occasionally wakes up with headaches.
6. Defendants' insurance carrier, Allstate Insurance, has offered to
tender $30,000.00 in settlement of the action.
7. New York State Insurance Law requires a plaintiff to have sustained a
"serious injury" in order to maintain a motor vehicle personal injury action.
Based on my discussions with the attorney for the debtor, and the injuries
sustained by the debtor, there is a possibility that the Court would conclude
that the debtor has failed to establish her injuries to be "serious" as
defined by statute. This is more fully set forth in the affirmation of
Andrew R. Arcuri, which is annexed hereto, in support of my application. In
addition to the risks of litigation, I am also advised that there would be
significant costs involved in litigating this matter and a delay of almost
one year before the case could be tried due to the back-log in the Suffolk
County calendar.
8. The attorney for the debtor has discussed the proposed settlement
with the debtor, and I am advised that the debtor has also consented to the
proposed settlement.
9. Under all circumstances considered, I believe that settlement of the
state court personal injury action for the sum of $30,000.00 is in the best
interests of the creditors and the debtor, and should be authorized by the
Court.
11. In Schedule C annexed to the debtor's petition, the debtor has
claimed a $7,500.00 exemption from the proceeds of the personal injury
action, which she is entitled to receive. I am, therefore, requesting that
the Court authorize me to disburse the sum of $7,500.00 to the debtor upon
receipt of the settlement proceeds without further order of the court.
12. If the Court decides to approve the settlement of the state court
action, I am also requesting that the Court fix the fees of special counsel
in the sum of $9,829.14 and reimbursement of expenses in the sum of $512.58.
Special counsel was retained by me on a contingency fee basis, subject to an
award of compensation as is approved by the Court. In the accompanying
affirmation of Andrew Arcuri, special counsel details the expenses which were
incurred as well as the calculation of compensation which it is seeking.
Furthermore, I am also requesting authorization to pay any award of fees and
expenses to special counsel without further order of the Court.
13. Simultaneously with the filing of this application, a notice to
creditors is being served advising all creditors, the debtor, the debtor's
counsel, the United States Trustee, and any other parties entitled to notice,
of my application to settle the state court personal injury action, to
disburse the debtor's $7,500.00 personal injury exemption without further
order of the court, to fix special counsel's fees and expenses, and to
authorize payment of the sums awarded to special counsel without further
order of the Court.
14. 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
January 29, 2002
_____________________________
KENNETH KIRSCHENBAUM, Trustee
200 Garden City Plaza
Garden City, New York 11530
(516) 747-6700
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
In the Matter of
Chapter 7
THERESA A. RICCARDI A.K.A. Case No. 01-85845-288
THERESA MOFFETT,
Debtor.
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ORDER APPROVING SETTLEMENT
The trustee, KENNETH KIRSCHENBAUM, by application dated January 28,
2002, and by notice to creditors dated January 28, 2002, having advised all
creditors and parties in interest of the trustee's application for an order:
(a) authorizing the trustee to settle a controversy pending in the Supreme
Court of the State of New York, County of Suffolk, entitled Theresa A.
Riccardi, Plaintiff vs. Marie C. Tagheu-Cethoute, M.C. Tagheu-Cethoute and V.
Youchom-Tagheu, Defendants, under Index No. 16493/00, for the sum of
$30,000.00; (b) authorizing the trustee to disburse the sum of $7,500.00 to
the debtor from the settlement proceeds, representing her claimed personal
injury exemption, without further order of the Court; (c)fixing the fees of
special counsel in the sum of $9,829.14 and the reimbursement of expenses to
special counsel in the sum of $512.58; (d) authorizing the payment of the
fees and expenses awarded to special counsel without further order of the
Court; and (e) for such other and further relief as the Court deems just and
appropriate, and no creditor or other party in interest having filed an
objection to the Application of the trustee, and the time for creditors and
parties in interest to file objections having expired, and it appearing that
the proposed settlement of the state court personal injury action for the sum
of $30,000.00 is in the best interest of the creditors and the estate,
NOW, upon the application of KENNETH KIRSCHENBAUM, Chapter 7 trustee, it
is
ORDERED, that KENNETH KIRSCHENBAUM, trustee, is authorized to settle a
controversy pending in the Supreme Court of the State of New York, County of
Suffolk, entitled Theresa A. Riccardi, Plaintiff vs. Marie C.
Tagheu-Cethoute, M.C. Tagheu-Cethoute and V. Youchom-Tagheu, Defendants,
under Index No. 16493/00, for the sum of $30,000.00; and it is further
ORDERED, that the trustee is authorized to disburse the sum of $7,500.00
to the debtor from the settlement proceeds, representing her claimed personal
injury exemption, without further order of the court; and it is further
ORDERED, that special counsel is awarded the sum of $9,829.14 as
compensation for services rendered and the sum of $512.58 as reimbursement of
out of pocket expenses, which sums shall be paid by the trustee to special
counsel from the settlement proceeds without further order of the Court.
Dated: Central Islip, New York
February , 2002
_______________________________
STAN BERNSTEIN
UNITED STATES BANKRUPTCY JUDGE
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In the Matter of
Chapter 7
THERESA A. RICCARDI A.K.A. Case No. 01-85845-288
THERESA MOFFETT,
Debtor. NOTICE TO CREDITORS
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PLEASE TAKE NOTICE that KENNETH KIRSCHENBAUM, the trustee herein,
proposes to compromise a claim and settle a controversy pending in the
Supreme Court of the State of New York, County of Suffolk, entitled Theresa
A. Riccardi, Plaintiff vs. Marie C. Tagheu-Cethoute, M.C. Tagheu-Cethoute and
V. Youchom-Tagheu, Defendants, under Index No. 16493/00, for the sum of
$30,000.00.
PLEASE TAKE FURTHER NOTICE that KENNETH KIRSCHENBAUM, the trustee herein,
proposes to disburse the sum of $7,500.00 to the debtor, representing the
debtor's claimed personal injury exemption,from the settlement proceeds
without further order of the court.
PLEASE TAKE FURTHER NOTICE that KELLY, LUGLIO & ARCURI, LLP, special
counsel to the trustee, is seeking an award of fees in the sum of $9,829.14
for services rendered in the state court proceeding, and reimbursement of
expenses in the sum of $512.58, to be paid by the trustee out of the
settlement proceeds without further order of the court.
A copy of the summons and complaint relating to the state court
proceeding is on file with the Suffolk County Clerk and may be inspected
during the Clerk's usual business hours. The trustee believes that the
settlement is fair and reasonable and is in the best interests of the
creditors. The basis for the trustee's requests are set forth in detail in
his application to the Court, and in the accompanying affirmation of Andrew
Arcuri, special counsel. The trustee's application, including the Arcuri
affirmation, is on file with the Clerk of the Bankruptcy Court, Long Island
Federal Courthouse, 290 Federal Plaza, Central Islip, New York 11722, and may
be inspected during the Clerk's usual business hours.
Objections to the compromise and settlement, to the trustee's request
for authorization to make the $7,500.00 disbursement to the debtor without
further order of the court, to the application to fix special counsel's fees
and expenses, or to pay the sums awarded to special counsel out of the
settlement proceeds without further order of the Court must be filed with the
Clerk of the United States Bankruptcy Court, Long Island Federal Courthouse,
290 Federal Plaza, Central Islip, New York 11722, and must be served upon
KENNETH KIRSCHENBAUM, trustee, 200 Garden City Plaza, Garden City, New York
11530, Attention, Steven B. Sheinwald, Esq., and the United States Trustee,
Long Island Federal Courthouse, 560 Federal Plaza, Central Islip, New York
11722, so as to actually be received on or before 12:00 noon on February 22,
2002.
If objections are filed, they will be considered by the Court at a
hearing to be held before Stan Bernstien, United States Bankruptcy Judge, at
the United States Bankruptcy Court, Long Island Federal Courthouse, 290
Federal Plaza, Room 860, Central Islip, New York on February 27, 2002 at
10.00 am. In the event no objections are filed and served on or before
February 22, 2002, an Order may be signed by the Court at any time
thereafter granting the relief sought in the trustee's application without
further notice.
Dated: Garden City, New York
January 29, 2002
KENNETH KIRSCHENBAUM, Trustee
200 Garden City Plaza
Garden City, NY 11530
(516) 747-6700
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