10-14997-brl Doc 2354 Filed 10/13/11 Entered 10/13/11 13:11:00 Main Document Pg 1 of 11 555 West 59 th Street New York, New York 10019 Telephone: (508) 320-4956 Tieppo@yahoo.com Gino G. Tonetti, Esq. Counsel for Gino and Dione Tonetti d/b/a Tonetti Enterprises, LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------- In re: BB LIQUIDATING INC., et al., 1 Debtors. ---------------------------------------------------------- x : : : : x Chapter 11 Case No. 10-14997 (BRL) (Jointly Administered) RESPONSE TO DEBTORS SIXTH OMNIBUS OBJECTION TO CLAIMS AND REQUEST FOR PAYMENT OF GINO TONETTI AND DIONE TONETTI D/B/A TONETTI ENTERPRISES LLC S ADMINISTRATIVE EXPENSE CLAIM Gino Tonetti and Dione Tonetti d/b/a Tonetti Enterprises LLC (collectively, Tonetti Enterprises or Lessor ), by and through their undersigned counsel, hereby file this response (the Response ) to Debtors Sixth Omnibus Objection to Claims (the Objection ), and request (a) payment of administrative expense claim No. 5250 (the Administrative Expense Claim ), 2 incurred by the above-captioned debtors and debtors-in-possession (the Debtors ) during the Debtors Post-Petition (as defined below) operating period between September 23, 2010 and December 17, 2010, and prior to rejection of the Lease (as defined below), (b) payment of reasonable attorney s fees incurred by Tonetti Enterprises in connection with this Response, and 1 The Debtors, together with the last four digits of each Debtor s federal tax identification number, are: BB Liquidating Inc. (5102); BB Liquidating Canada Inc. (1269); BB Liquidating Digital Technologies Inc. (9222); BB Liquidating Distribution, Inc. (0610); BB Liquidating GC, Inc. (1855); BB Liquidating Global Services Inc. (3019); BB Liquidating International Spain Inc. (7615); BB Liquidating Investments LLC (6313); BB Liquidating Procurement LP (2546); BB Liquidating Video Italy, Inc. (5068); BB Liquidating ML, LLC (5575); BB Liquidating Trading Zone Inc. (8588); and BB Liquidating B 2 LLC (5219). 2 The Administrative Expense Claim should be amended from $19,769.86 to $19,770.85. containing estimates of the Damage (as defined below). See Exhibit C
10-14997-brl Doc 2354 Filed 10/13/11 Entered 10/13/11 13:11:00 Main Document Pg 2 of 11 (c) grant such other and further relief deemed appropriate under the circumstances. In support of this request, Tonetti Enterprises states as follows: Background 1. Pursuant to that certain Indenture of Lease dated as of October 31, 1991, as amended from time to time (the Lease ), attached hereto as Exhibit A, by and between Gino Tonetti and Dione Tonetti, as Lessor, and Blockbuster, Inc., as successor lessee to Northeast Management, Inc. ( Blockbuster or Lessee ), and that certain Lease Termination Agreement (the Termination Agreement ), attached hereto as Exhibit B, dated as of July 24, 2010, by and between Gino Tonetti and Dione Tonetti, and Blockbuster, Blockbuster was required to vacate the premises (the Premises or Demised Premises ) occupied by Blockbuster under the Lease on or before 11:59 p.m. on [September 30, 2010]... in the manner set forth in the Lease. See Termination Agreement at 2. Section 6 of the Lease provides that Blockbuster may install trade fixtures on the Premises, provided, however, that [s]aid fixtures and equipment may be removed by the Lessee or its agent at any time during the term of this Lease, provided Lessee promptly repairs any damage to the Demised Premises as a result of such Removal. See Lease at Section 6. Section 9 of the Lease further provides that Lessee shall be responsible for exterior structural damage or repairs to the Demised Premises (as defined in the Lease) caused by the Lessee s construction on the Premises. Id., at Section 9. 2. On September 23, 2010 (the Petition Date ), Blockbuster filed for chapter 11 protection pursuant to 11 U.S.C. 101, et seq. (the Bankruptcy Code ). On the Petition Date and following Blockbuster s filing of a petition for bankruptcy relief, Blockbuster vacated the Premises as required pursuant to the Lease and Termination Agreement. In the process of vacating the Premises Blockbuster, through its moving-agent Facility Maintenance (the 2
10-14997-brl Doc 2354 Filed 10/13/11 Entered 10/13/11 13:11:00 Main Document Pg 3 of 11 Agent ), caused damage (the Damage ), to the fabric and aluminum awning printed with the name Blockbuster attached to the exterior wall of the building and the area along the sidewalk at the Premises, when the Agent s moving-truck hit the awning. See Declaration of Gino Tonetti in Support of Response to Debtors Sixth Omnibus Objection to Claims and Request for Payment of Gino Tonetti and Dione Tonetti d/b/a Tonetti Enterprises LLC s Administrative Expense Claim, at 3. Damages caused by such incident total $19,770.85 (the Post-Petition Damages ), id., at 4; see also estimates, attached hereto as Exhibit C prepared by local contractors on behalf of Tonetti Enterprises for purposes of repairing the damage caused by Blockbuster in its efforts to vacate the premises. A copy of the estimates was also included as an exhibit to Tonetti Enterprises Administrative Expense Claim. 3. On July 22, 2011, this Court entered its Order Pursuant to 11 U.S.C. 365(d)(4) Rejecting Unexpired Leases of Non-Residential Real Property That Were Not Assumed and Assigned to the Purchaser (Docket No. 2117) (the Rejection Order ). The Rejection Order, attached hereto in relevant part as Exhibit D, provides for rejection of the Lease as of July 20, 2011 (the Rejection Date ), Post-Petition and following the Damages caused by Blockbuster. Moreover, the Debtors have not rejected the Termination Agreement which, though incorporates certain terms of the Lease, was a separate contract from the Lease. The Termination Agreement provides not only that Blockbuster would vacate the premises upon the terms of the Lease (as described above) but that the prevailing party [of a dispute under the Termination Agreement] will be entitled to receive from the non-prevailing party, reasonable attorneys fees.... See Termination Agreement at Section 8. 4. On June 8, 2011, Tonetti Enterprises filed its Administrative Expense Claim. In response the Debtors filed their Objection. Tonetti Enterprises files this Response and 3
10-14997-brl Doc 2354 Filed 10/13/11 Entered 10/13/11 13:11:00 Main Document Pg 4 of 11 respectfully requests entry of an order directing the Debtors to (a) pay the Administrative Expenses Claim for Damages in the amount of $19,770.85, (b) pay reasonable attorney s fees incurred by Tonetti Enterprises in connection with this Response, and (c) grant such other and further relief deemed appropriate under the circumstances. Argument The Damages Were Incurred as Actual Necessary Costs and Expenses of Preserving the Debtors Estates 5. Tonetti Enterprises Administrative Expense Claim is entitled to the highest level of priority as actual, necessary costs and expenses of preserving the estate..., 11 U.S.C. 503(b)(1), because the Damages were caused by the Blockbuster during removal of its property from the Premises. Under the prevailing test, a creditor should be afforded administrative priority for a debt owed to it if the debt both (1) arises out of a transaction between the creditor and debtor-in-possession, and (2) the consideration supporting the creditor s right to payment was supplied to and benefited the debtor-in-possession in the operation of business. See Amalgamated Ins. Fund v. McFarlin s, Inc., 789 F.2d 98, 101 (2d Cir. 1986); see also In re Jartran, Inc., 732 F.2d 584, 587 (7th Cir. 1984) (quoting In re Mammoth Mart. Inc., 536 F.2d 950, 954 (1st Cir. 1976)); In re Worldcom Inc., 308 B.R. 157, 166 (Bankr. S.D.N.Y. 2004). Tonetti Enterprises meets both these criteria. 6. There can be no doubt that the Damages caused on September 23, 2010 were Post-Petition and pre-rejection Date. Blockbuster clearly believed that it was beneficial to take advantage of its rights under the Lease and Termination Agreement and vacate the Premises Post-Petition, collect its property, and reduce the need to expend money and efforts on the termination and/or rejection of the Lease Post-Petition. If Blockbuster did not believe these benefits existed it would not have agreed to and then availed itself of such benefit. Accordingly, 4
10-14997-brl Doc 2354 Filed 10/13/11 Entered 10/13/11 13:11:00 Main Document Pg 5 of 11 where as here, the debtor-in-possession elects to continue to receive benefits from the other party to an executory contract pending a decision to reject or assume the contract, the debtor-inpossession is obliged to pay for the reasonable value of those services. NLRB v. Bildisco & Bildisco, 465 U.S. 513, 531 (1984); see also Am. Anthracite & Bituminous Coal Corp. v. Leonardo Arrivabene, S.A., 280 F.2d 119, 124 (2d Cir. 1960); In re WorldCom, Inc., 308 B.R. at 166; Goldin v. Putnam Lovell, Inc. (In re Monarch Capital Corp.), 163 B.R. 899, 908 (Bankr. D. Mass. 1994). Any other result would be inequitable. 3 Accordingly, under these circumstances, this Court should order, and Tonetti Enterprises plainly is entitled to an Administrative Expense Claim for the Damage caused by Blockbuster and its Agent. The Damages Were Caused by the Debtors Post-Petition Negligence 1. The Damages caused when Blockbuster vacated the Premises were inflicted by the negligence of the Blockbuster s Agent for which the Blockbuster is vicariously liable. It is settled doctrine that tort claims arising during the course of a Chapter 11 proceeding are actual and necessary administrative expenses within the meaning of 11 U.S.C. 503(b)(1)(A). In re United Puerto Rican Food Corp, 41 B.R. 565, 573-74 (Bankr. E.D.N.Y. 1984); see also Reading Co. v. Brown, 391 U.S. 471, 482-485, (1968) (It is also well-established that damages resulting from the negligence of a receiver during the post-petition period give rise to administrative expense claims., Id. at 485. In reaching this conclusion, the Supreme Court reasoned that where a tort victim-in essence, an involuntary creditor of the estate- suffer[s] grave financial injury as a result of the negligence of the bankrupt s estate, id. at 477, it is natural and 3 During the Post-Petition, pre-rejection Date period, Blockbuster clearly used the Premises to remove its property. Tonetti Enterprises respectfully requests that this Court provide additional amounts as an administrative expense claim as appropriate to compensate Tonetti Enterprises for the post-petition, pre- Rejection Date use of the Premises. Tonetti Enterprises suggests that such amount should be $47,000.00 as provided for in the Termination Agreement. 5
10-14997-brl Doc 2354 Filed 10/13/11 Entered 10/13/11 13:11:00 Main Document Pg 6 of 11 just to afford such claims priority of distribution, id. at 482); Carter-Wallace, Inc. v. Davis- Edwards Fhrmakal Corp., 443 F.2d 867, 874 (2d Cir. 1971) (tort claims arising during the course of a chapter 11 case are actual and necessary administrative expenses within the meaning of 503(b)(a)(A)). Moreover, tort claims arising during the course of a chapter 11 case are actual and necessary administrative expenses within the meaning of Section 503(b)(1)(A) of the Bankruptcy Code even though, as the leading treatise notes, such claims d[o] not arise from transactions that were necessary to preserve or rehabilitate the estate. 4 Collier on Bankruptcy 503.06[3][b][i]. The Damages were caused by the negligence or other tortious conduct of Blockbuster and its Agent during the removal of the Blockbuster s assets from the Premises. Accordingly, the Post-Petition Damages are entitled administrative expense priority. See e.g., In re Bayou Group, LLC, 431 B.R. 549, 558 (Bankr. S.D.N.Y. 2010) ( the case law is clear that the [administrative] expense must, among other things, derive from a post petition transaction with the debtor in possession or trustee or post petition tort by the debtor in possession or trustee ) (emphasis added). 2. It is beyond contestation that Blockbuster had both a contractual duty in the Lease and in the Lease Termination Agreement as well as a general obligation to remove its property from the Premises without causing damage to the Premises. Blockbuster hired its Agent to perform those duties on its behalf. During removal of Blockbuster s property, Blockbuster s Agent s caused the Damage to the Premises. This is not at issue nor can Blockbuster in good faith challenge these facts. Accordingly, Blockbuster s negligent removal of its property from the Premises caused the Damages. See e.g., Martin v. Marciano, 871 A.2d 911, 915 (R.I. 2005) ( Because there is no set formula for finding a legal duty, such determination must be made on a case-by-case basis ); Volpe v. Gallagher, 821 A.2d 699, 705 (R.I. 2003) (same); Mills v. State 6
10-14997-brl Doc 2354 Filed 10/13/11 Entered 10/13/11 13:11:00 Main Document Pg 7 of 11 Sales, Inc., 824 A.2d 461, 467 (R.I. 2003) (To properly set forth a claim for negligence a plaintiff must establish a legally cognizable duty owed by a defendant to a plaintiff, breach of that duty, proximate causation between the conduct and the resulting injury, and the actual loss or damage ) (internal citations omitted). 3. This court should also find Blockbuster vicariously liable for the negligence of its Agent. Even though, on information and belief, the Agent was an independent contractor and not an employee of Blockbuster, the Agent acted as an apparent agent of Blockbuster and, as such, the Agent s negligence in performing the duties and obligations of Blockbuster to remove the Debtors property without damaging the Premises should be imputed to the Debtors. See e.g., Calenda v. Allstate Insurance Co., 518 A.2d 624 (R.I.1986) (recognizing the doctrine of apparent authority in the context of contractual transactions); Petrone v. Davis, 118 R.I. 261, 373 A.2d 485 (1977) (same) 4. The principles of apparent authority are set forth in the Restatement (Second) Agency 267 (1958): One who represents that another is his [or her] servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he [or she] were such. 5. Viewing the restatement in conjunction with prior Rhode Island case law, which governs the relationship between Blockbuster and Tonetti Enterprises, this Court should find that Blockbuster is vicariously liable for the negligence of its Agent during the removal of the Blockbuster s property from the Premises. 6. Accordingly, consistent with Reading Company v. Brown, 391 U.S. 471 (1968) (administrative expense claim allowed when receiver caused fire to non-debtor s property 7
10-14997-brl Doc 2354 Filed 10/13/11 Entered 10/13/11 13:11:00 Main Document Pg 8 of 11 regardless of whether it was the receiver s intention to preserve property of the estate), Tonetti Enterprises should be entitled to the full amount of its Administrative Expense Claim. See also Chemical & Atomic Workers v. Hanlin Group, Inc. (In re Hanlin Group, Inc.), 176 B.R. 329, 333 (Bankr.D.N.J.1995) ( [c]laims resulting from injury caused by the continued operation of the business by the debtor-in-possession are also classified as administrative expenses, notwithstanding the lack of benefit to the estate ) (citations omitted). The Debtors Objection Does Not Refute the Factual Basis of the Administrative Expense Claim 7. The Debtors have not provided any evidence which, if believed, would refute at least one of the allegations essential to the Administrative Expense Claim. Instead, the Debtors Objection to the Administrative Expense Claim is based on vague allegations of no liability. These mere general averments are insufficient to puncture the prima facie presumption of validity of the Administrative Expense Claim. Moreover, Debtors counsel have provided that the Debtors likely objected to the Administrative Expense Claim because the Lease was not a lease between Tonetti Enterprises and the Debtors and the Debtors records did not include the Transfer Agreement between Blockbuster and its franchisee. The Debtors, however, were provided with the Lease Termination Agreement as an exhibit to Tonetti Enterprises proof of claim, which states that Blockbuster Inc., is successor in interest to Northeast Management, the original lessee. Thus, the Debtors Objection was based on their failure to read the documentation included in Tonetti Enterprises proof of claim, and lack of knowledge of its own internal documentation. Accordingly, the Debtors Objection is misplaced and therefore should be denied. 8. A claim is a right to payment... or... right to an equitable remedy. 11 U.S.C. 101(5). Creditors with claims for payment or equitable relief may file a proof of claim. 11 8
10-14997-brl Doc 2354 Filed 10/13/11 Entered 10/13/11 13:11:00 Main Document Pg 9 of 11 U.S.C. 501(a). To overcome this prima facie evidence, the objecting party must come forth with evidence which, if believed, would refute at least one of the allegations essential to the claim. Sherman v. Novak (In re Reilly), 245 B.R. 768, 773 (2d Cir. BAP 2000) (citing In re Allegheny Int'l, Inc., 954 F.2d 167 (3d Cir.1992); In re Giordano, 234 B.R. 645, 650 (Bankr. E.D. Pa. 1999)). Specifically, a proof of claim in a bankruptcy proceeding cannot be defeated by mere formal objection and the sworn proof is to be treated as some evidence even when it is denied. In re Sabre Shipping Corp., 299 F.Supp. 97, 99 (S.D.N.Y. 1969). If the objector does not introduce[ ] evidence as to the invalidity of the claim or the excessiveness of its amount, the claimant need offer no further proof of the merits of the validity and the amount of the claim. 4 Collier on Bankruptcy 502.03[3][f] (rev. ed. 2007). 9. The Debtors have not provided any evidence which, if believed, would refute at least one of the allegations essential to the Administrative Expense Claim. In re Reilly, 245 B.R. 768, 773 (B.A.P. 2d Cir. 2000). Moreover, the Debtors have admitted that the basis of their Objection is inconsistent with the facts. Accordingly, the Debtors Objection is without merit and Tonetti Enterprises Administrative Expense Claim should be allowed in full. This Court Should Award Tonetti Enterprises Attorney s Fees in Connection with this Response 10. Bankruptcy Rule 3001(f) establishes that a validly executed and filed proof of claim is prima facie evidence of the validity and amount of the Administrative Expense Claim. The exact basis for the Debtors Objection of Tonetti Enterprises Administrative Expense Claim is not set forth in the Objection and the Objection is not sufficient to overcome the prima facie presumptive validity of the Administrative Expense Claim. Moreover, the Debtors have admitted that they did not fully review the basis of the Administrative Expense Claim and the Debtors related contractual obligations in full prior to filing their Objection. 9
10-14997-brl Doc 2354 Filed 10/13/11 Entered 10/13/11 13:11:00 Main Document Pg 10 of 11 11. Tonetti Enterprises respectfully requests reimbursement of all attorneys fees for being required to respond to the Objection. Tonetti Enterprises Administrative Expense Claim is only $19,770.85 and it has incurred attorney s fees for approximately 20.3 hours at a rate of $500/hr for a total of $10,150.00 in connection with filing this Response. Accordingly, as a result of the attorney s fees incurred in connection with this Response, the benefit of Tonetti Enterprises Administrative Expense Claim has been reduced by more than 50%. Based on Debtors counsel s experience, counsel to Debtors would know that an Objection to an administrative expense claim of $19,770.85 would not likely draw a response based on the cost of such response. The Debtors were therefore well aware of the fact that their baseless Objection would likely wipe out the Administrative Expense Claim. Such inequitable behavior should not be tolerated. Moreover, the Termination Agreement provides not only that Blockbuster would vacate the premises upon the terms of the Lease (as described above) but that the prevailing party [of a dispute under the Termination Agreement] will be entitled to receive from the nonprevailing party, reasonable attorneys fees.... See Termination Agreement at Section 8. 12. Accordingly, the Debtors should be required to reimburse Tonetti Enterprises for its attorney s fees incurred in connection with this Response. The Administrative Expense Claim Should be Immediately Paid 13. Tonetti Enterprises is entitled to immediate payment of its Administrative Expense Claim and related attorney s fees, if allowed. Tonetti Enterprises acknowledges that the time of payment for section 503(b) claims is within the discretion of the court. See Sapir v. C.P.Q. Colorchrome Corp. (In re Photo Promotion Assocs., Inc.), 881 F.2d 6, 9 (2d Cir. 1989) (internal citations omitted). Insofar as Blockbuster has paid other Post-Petition operating period administrative claims in the ordinary course, Tonetti Enterprises should be included as well. 10
10-14997-brl Doc 2354 Filed 10/13/11 Entered 10/13/11 13:11:00 Main Document Pg 11 of 11 14. Tonetti Enterprises expressly reserves all rights and remedies that it has or may have against the Debtors or any other person or persons liable for all or part of the Administrative Expense Claim. WHEREFORE, Tonetti Enterprises respectfully requests entry of an order directing the Debtors to (a) pay the Administrative Expenses Claim for Damages in the amount of $19,770.85, (b) pay reasonable attorney s fees incurred by Tonetti Enterprises in connection with this Response, and (c) grant such other and further relief deemed appropriate under the circumstances. Dated: New York, New York October 13, 2011 /s/ Gino G. Tonetti Gino G. Tonetti 555 West 59 th Street New York, New York 10019 Telephone: (508) 320-4956 Tieppo@yahoo.com Gino G. Tonetti, Esq. Counsel for Gino and Dione Tonetti d/b/a Tonetti Enterprises, LLC 11
10-14997-brl Doc 2354-1 Filed 10/13/11 Entered 10/13/11 13:11:00 Exhibit A - Lease Pg 1 of 25
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10-14997-brl Doc 2354-2 Filed 10/13/11 Entered 10/13/11 13:11:00 Exhibit B - Termination Agreement Pg 1 of 7
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10-14997-brl Doc 2354-2 Filed 10/13/11 Entered 10/13/11 13:11:00 Exhibit B - Termination Agreement Pg 7 of 7
10-14997-brl Doc 2354-3 Filed 10/13/11 Entered 10/13/11 13:11:00 Exhibit C - Estimates Pg 1 of 3
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10-14997-brl Doc 2354-4 Filed 10/13/11 Entered 10/13/11 13:11:00 Exhibit D - Rejection Order Pg 1 of 5
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10-14997-brl Doc 2354-5 Filed 10/13/11 Entered 10/13/11 13:11:00 Exhibit Declaration of Gino Tonetti in Support of Response to Debtors Sixt Pg 1 of 2
10-14997-brl Doc 2354-5 Filed 10/13/11 Entered 10/13/11 13:11:00 Exhibit Declaration of Gino Tonetti in Support of Response to Debtors Sixt Pg 2 of 2