November 30, 2001

 

In the Matter of a Mail Dispute

Between

 

GERARD ZWIRN

 

and

 

JOSEPH FISCHER

 

P.S. Docket No. MD 01-297

 

APPEARANCE FOR DISPUTANT GERARD ZWIRN:

Gerard Zwirn, Esq.

43-43 Northern Boulevard

Long Island City, NY  11101-1539

 

APPEARANCE FOR DISPUTANT JOSEPH FISCHER:

Joseph Fischer

P.O. Box 20204

New York, NY  10014-0710

 

INITIAL DECISION

            This mail dispute has been docketed pursuant to Postal Operations Manual (POM 8, July 16, 1998 (with Revisions through June 28, 2001)) Section 616.21, which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution.  The mail in dispute is that addressed to City Line Auto Mall, Inc., at 35-18/35-10 43rd Street, Long Island City, NY 11101-1429.  The Long Island City Postmaster is currently holding the mail.

            Mr. Fischer submitted a sworn statement, signed by himself and Mr. Tornheim, in support of his claim to the disputed mail, as required by 39 C.F.R. §965.5.  Mr. Zwirn did not submit a sworn statement, or anything else, in support of his claim.  The following findings of fact are based on Mr. Fischer's statement and the materials forwarded by the United States Postal Service Law Department, New York Metro Office, including letters and other documents previously submitted by both parties.

FINDINGS OF FACT

            1.  City Line Auto Mall, Inc., was incorporated in New York State on May 28, 1997 by Gerald Weinberg.  The Certificate of Incorporation was filed on that date by Gerard Zwirn.  (Attachments to Zwirn September 4, 2001 letter to Law Department).

            2.  Mr. Fischer is allied in this dispute with Chaim Tornheim.  Some time ago, Mr. Fischer says it was December 27, 1999, Mr. Fischer, Mr. Tornheim, and Mr. Zwirn signed a hand-printed agreement described as an agreement "between Cityline Auto Mall, Inc. & Joseph Fischer & Chaim Tornheim."  Fischer was called "the Buyer."  Cityline AutoMall, Inc. was called "the Dealer."  Mr. Zwirn signed the document as "Pres."  (Fischer/Tornheim affidavit, Nov. 8, 2001; Attachment to Fischer August 24, 2001 letter to Law Department).

            3.  Paragraph 3 of the agreement states that "The Dealership shall work in conjunction with F & T, who shall operate the business . . .."  Paragraph 4, however, states that "The Dealership shall continue to operate the business in conjunction with F & T . . .."  "F & T" were to receive 75% of the profits of the business and also were permitted to attend dealer auctions on behalf of "CAM."

            4.  The agreement stated that all debts prior to the date of the agreement would be solely the obligation of "it's" officers, Joseph Passarelli and Gerard Zwirn, and that Joseph Fischer and Chaim Tornheim shall be responsible for debts thereafter.  Printed along the side of the second page of the agreement, in different handwriting, are the statements, "We will modify this into a shareholders agreement," and "Buyer can make corporate change or new corp."

            5.  On December 6, 2000, Mr. Fischer and Mr. Tornheim wrote to several people, including Mr. Zwirn.  The letter repeated a typewritten copy of the agreement discussed above and stated, "The foregoing is modified into a shareholders agreement of City Line Auto Mall, Inc."  The letter also said that the "undersigned, representing seventy-five (75%) percent of the owners …, hereby unanimously discharge and dismiss all prior directors and/or officers of the corporation.”  The letter then said that the undersigned "unanimously elect themselves as directors …," and "appoint themselves to jointly occupy each and every office of the corporation." (Fischer/Tornheim affidavit; Attachment to Fischer August 24, 2001 letter to Law Department).

            6.  Sometime prior to May 8, 2001, Mr. Zwirn, or someone acting on his behalf, directed that mail addressed to City Line Auto Mall, Inc., at 35-18/35-10 43rd Street, Long Island City, NY be forwarded to 43-43 Northern Boulevard, Long Island City, NY 11101.  On May 8, 2001, Mr. Tornheim wrote to the Long Island City Post Office to protest this action, and this mail dispute arose.

DECISION

            Although the documents submitted by Mr. Fischer seem to support his argument that he and Mr. Tornheim are now the principal owners and officers of the business, it is not clear that all necessary legal steps have been taken to transfer ownership and corporate authority.  Having not filed the sworn statement required by 39 C.F.R. §965.5, however, Mr. Zwirn is in default.  That alone is a basis for ruling in favor of Mr. Fischer (39 C.F.R. §965.7).  In addition, the documents filed by Mr. Fischer provide a sound basis for ruling in his favor.

In three separate letters to the Long Island City Post Office or to the Law Department, and in their November 8, 2001 affidavit, Mr. Fischer and/or Mr. Tornheim state that they are operating the business known as City Line Auto Mall, Inc., at the disputed address and have been doing so for more than a year.  There is nothing in the case file from Mr. Zwirn that disputes this.  Therefore, it is assumed that persons sending mail to City Line Auto Mall, Inc., at the disputed address intend for it to be received by Mr. Fischer and Mr. Tornheim.  Accordingly, the mail should be delivered as addressed.

            This decision deals only with delivery of the mail.  It does not attempt to resolve any other disputes between the parties.  If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such an order.  POM §616.3.

            The Judicial Officer should issue an order to the Long Island City Postmaster directing that the disputed mail be delivered as addressed.

 

 

 

                                                                                    Bruce R. Houston

                                                                                    Chief Administrative Law Judge