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Solow Bldg. Co. v. ATC Assocs.

Citation: 32 ELR 20379
No. No. 01-CV-0612(DGT), 175 F. Supp. 2d 465/(E.D.N.Y., 11/28/2001)

The court denies a bankrupt environmental management company's motions to dismiss property owners' Declaratory Judgment Act (DJA) action for lack of venue and failure to state a claim. The property owners sought a judgment declaring that the company had violated the Clean Air Act when it improperly removed asbestos from the owners' building. The court first holds that the company's motion to dismiss for failure to state a claim fails because the company's bankruptcy did not discharge the owners' claims against the company. Although the owners' claim is covered by the statutory definition of a claim dischargeable in bankruptcy, discharge under the Bankruptcy Code presumes that all creditors have been given sufficient notice of the debtor's bankruptcy filing. The record indicates that the owners were reasonably ascertainable creditors entitled to actual written notice of the company's bankruptcy filing. Since the company did not provide written notice to the owners, bankruptcy did not discharge the owners' claims. The court also holds that the owners' claims are properly venued in the Eastern District of New York because the DJA allows venue in the district and because the DJA claim is the primary claim.

Counsel for Plaintiffs
Alan B. Vickery
Boies, Schiller & Flexner
570 Lexington Ave., New York NY 10022
(212) 446-2300

Counsel for Defendants
Richard Fama
Cozen & O'Connor
45 Broadway Atrium, 16th Fl., New York NY 10006
(212) 509-9400

Trager, J.