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In Re: AJ Contracting Co., Inc.



In this adversary proceeding under the umbrella of a case under chapter 11 of the Bankruptcy Code, the Creditors' Committee of the debtor AJ Contracting Company, Inc., on behalf of the AJ Contracting Estate, seeks to recover, as a fraudulent conveyance and misappropriation of statutory trus.....

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In this adversary proceeding under the umbrella of a case under chapter 11 of the Bankruptcy Code, the Creditors’ Committee of the debtor AJ Contracting Company, Inc., on behalf of the AJ Contracting Estate, seeks to recover, as a fraudulent conveyance and misappropriation of statutory trust funds, more than $3 million that was paid by AJ Contracting to the defendant Robert M. Morgenthau, the District Attorney for New York County of the State of New York, under a plea bargain after the indictment of AJ Contracting and its principal, Charles Uribe, for commercial bribery. DA Morgenthau has moved to dismiss the action for lack of subject matter jurisdiction.1

DA Morgenthau seeks to invoke sovereign immunity and the protection of the Eleventh Amendment2 with respect to such claims, which if applicable would deprive this Court of subject matter jurisdiction to hear them. The Creditors’ Committee and DA Morgenthau agreed to present a threshold issue to this Court-whether in acting as he did to take the Debtor’s funds, DA Morgenthau was acting on behalf of the State (in which case the Eleventh Amendment would be applicable), or New York County (in which case it would not be).3

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