Three Brothers Trading, LLC v. Generex Biotechnology Corp.

Filing 170

MEMO ENDORSEMENT with respect to 169 Motion re: 169 MOTION Final Report and Motion of Ryniker Consultants, LLC, As the Court-Appointed Receiver, For An Order Terminating The Receiver's Appointment and Discharging It of Its Duties Un der the Court's Order Dated April 11, 2022 re: 168 Orde. ENDORSEMENT: The Court is in receipt of the above motion to terminate the Receiver, as well as an accompanying affidavit. (Dkt. #169). On December 22, 2022, the Court ordered the part ies to submit a joint letter providing the Court with updates regarding the involuntary Chapter 7 bankruptcy proceedings by January 13, 2023. (Dkt. #168). However, the parties have not submitted a joint letter in line with the Court's Order. Acc ordingly, the parties are hereby ORDERED to submit a joint letter by January 23, 2023, both (i) providing a response to the Receiver's above motion; and (ii) apprising the Court of any updates in the involuntary Chapter 7 bankruptcy proceedings. The Court will reserve decision on the Receiver's motion until the parties submit this joint letter. (Signed by Judge Katherine Polk Failla on 1/17/2023) (rro) Modified on 1/17/2023 (rro).

Case 1:18-cv-11585-KPF Document 170 Filed 01/17/23 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THREE BROTHERS TRADING, LLC, d/b/a
:
ALTERNATIVE EXECUTION GROUP,
:
:
Petitioner,
:
:
-against:
:
GENEREX BIOTECHNOLOGY CORP.,
:
:
Respondent.
:
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Index No. 18-cv-11585 (KPF)

MEMO ENDORSED

FINAL REPORT AND MOTION OF RYNIKER CONSULTANTS, LLC, AS THE
COURT-APPOINTED RECEIVER, FOR AN ORDER TERMINATING THE
RECEIVER’S APPOINTMENT AND DISCHARGING IT OF ITS DUTIES
UNDER THE COURT’S ORDER DATED APRIL 11, 2022 [DOCKET NO. 159]
TO THE HONORABLE KATHERINE POLK FAILLA,
UNITED STATES DISTRICT JUDGE:
Ryniker Consultants, LLC (the “Receiver”), by and through his counsel, Klestadt Winters
Jureller Southard & Stevens, LLP, as and for his final report to this Court and motion (the
“Motion”) for entry of an order terminating the Receiver’s appointment, discharging it of its duties
under the Receivership Order and for a final award of fees, respectfully represents.
1.

On February 22, 2022, this Court entered an order granting the petition of Three

Brothers Trading, LLC, d/b/a Alternative Execution Group (“AEXG”) seeking the appointment of
a Receiver.
2.

On or around March 10, 2022, the Receiver was informed by AEXG that the

Receiver was selected to serve, subject to the approval of this Court and entry of a proper order.
3.

On April 11, 2022, this Court entered the Receivership Order appointing the

Receiver.
4.

On April 23, 2022, an involuntary bankruptcy proceeding was filed against Generex

Case 1:18-cv-11585-KPF Document 170 Filed 01/17/23 Page 2 of 4

under chapter 7 of Title 11 of the United States Code (the “Bankruptcy Code”) by certain creditors
in the United States Bankruptcy Court for the Southern District of Florida (the “Bankruptcy
Court”) and remains pending before the Honorable Peter D. Russin under Case No. 22-13166.
5.

Upon the filing of the Chapter 7 Case, an automatic stay (the “Automatic Stay”) is

effective immediately over all property interests of Generex in accordance with sections 362 and
541 of the Bankruptcy Code. At such point as the Receiver became aware of the Chapter 7 Case,
the Receiver precluded by operation of the Automatic Stay and section 543 of the Bankruptcy
Code from taking any further actions with regard to the Receivership Estate, except as may be
necessary to preserve the same.
6.

The Bankruptcy Court entered an “order for relief” in the Chapter 7 Case on June

6, 2022 and then subsequently appointed Marc P. Barmat as trustee in the Bankruptcy Case (the
“Chapter 7 Trustee”) on June 7, 2022.
7.

On December 22, 2022, this Court entered an Order directing the Receiver to

submit a report or formal request to terminate the Receiver from its Obligations under the
Receivership Order on or before January 13, 2023. This Motion is intended to comply with the
requirements of such Order.
8.

As evidenced by the declaration of Brian Ryniker dated January 6, 2023 in support

of this Motion (the “Receiver’s Declaration”), the Receiver promptly contacted the Chapter 7
Trustee following his appointment and complied with all obligations imposed on the Receiver
under section 543(b) of the Bankruptcy Code, including by providing to the Chapter 7 Trustee all
relevant information and data collected in relation to Generex during his tenure.
9.

The Receiver’s Declaration also clarifies that the Receiver never collected nor

recovered any liquid funds or other physical assets that required surrender or transfer to the Chapter

2

Case 1:18-cv-11585-KPF Document 170 Filed 01/17/23 Page 3 of 4

7 Trustee.
10.

The Receiver’s Declaration sets forth the costs and fees incurred by the Receiver

and his professionals during his tenure. Proofs of claim were filed in the Bankruptcy Case on or
about November 3, 2022 asserting priority claims for the costs and fees incurred.
11.

In light of the appointment of the Chapter 7 Trustee and the pendency of the

Automatic Stay, the Receiver expects that no party in interest will see any continued benefit to
pendency of the instant proceeding before the Court. The Chapter 7 Trustee has stated no
opposition to the relief requested nor any intention to invoke the Automatic Stay in relation to this
Motion.
WHEREFORE, the Receiver respectfully requests that this Court enter an order
terminating the Receiver’s appointment and discharging and releasing the Receiver from any
further duties or obligations under the Receivership Order, and for such other and further relief as
the Court determines to be just and proper.
Dated: New York, New York
January 6, 2023

KLESTADT WINTERS JURELLER
SOUTHARD & STEVENS, LLP
By: /s/Sean C. Southard
Sean C. Southard
Fred Stevens
200 West 41st Street, 17th Floor
New York, New York 10036
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

3

Case 1:18-cv-11585-KPF Document 170 Filed 01/17/23 Page 4 of 4
The Court is in receipt of the above motion to terminate the Receiver, as
well as an accompanying affidavit. (Dkt. #169). On December 22, 2022,
the Court ordered the parties to submit a joint letter providing the
Court with updates regarding the involuntary Chapter 7 bankruptcy
proceedings by January 13, 2023. (Dkt. #168). However, the parties have
not submitted a joint letter in line with the Court's Order.
Accordingly, the parties are hereby ORDERED to submit a joint letter by
January 23, 2023, both (i) providing a response to the Receiver's above
motion; and (ii) apprising the Court of any updates in the involuntary
Chapter 7 bankruptcy proceedings. The Court will reserve decision on the
Receiver's motion until the parties submit this joint letter.
Dated:

January 17, 2023
New York, New York

SO ORDERED.

HON. KATHERINE POLK FAILLA
UNITED STATES DISTRICT JUDGE