     05-7026-bk
     In Re: Andrew A. Hyman



 1                               UNITED STATES COURT OF APPEALS
 2                                    FOR THE SECOND CIRCUIT
 3                                     _____________________

 4                                            August Term, 2006
 5
 6    (Argued: September 18, 2006                                       Decided: September 6, 2007)
 7
 8                                          Docket No. 05-7026-bk
 9
10                                        ______________________
11
12                                       IN RE : ANDREW A. HYMAN ,
13                                                                                              Debtor,
14                                         ____________________
15
16                                          G. HALLETT DENTON,
17                              As Executor of the Estate of George W. Denton,
18                                                                                            Appellant,
19
20                                                 — v .—
21
22
23                                           ANDREW A. HYMAN ,
24                                                                                    Debtor-Appellee.
25                                           _________________
26   Before:
27
28                 CALABRESI and B. D. PARKER, Circuit Judges, and LYNCH *, District Judge.
29
30
31                                          __________________
32
33
34          Appeal from a judgment of the United States District Court for the Southern District of
35   New York (Conner, J.) affirming the Bankruptcy Court’s (Hardin, J.) ruling that collateral
36   estoppel based on findings in prior Surrogate’s Court proceedings did not preclude relitigation of
37   a non-dischargeability claim. See 11 U.S.C. § 523(a).


               *
             The Honorable Gerard E. Lynch, United States District Court for the Southern District
     of New York, sitting by designation.
 1
 2          AFFIRMED.
 3                                          __________________
 4
 5                                  KENNETH L. STEIN (Norman A. Senior & Jeffery H. Sheetz, of
 6                                       counsel), Greenfield Stein & Senior, LLP, New York, NY,
 7                                       for Appellant G. Hallett Denton.
 8
 9                                  ANTHONY L. TERSIGNI, Meyers Tersigni Feldman & Gray, LLP,
10                                       New York, NY (Richard N. Gray, Meyers Tersigni
11                                       Feldman & Gray, New York, NY; M. Stuart Goldberg,
12                                       White Plains, NY, on the brief), for Appellee Andrew A.
13                                       Hyman.
14
15                                          __________________
16
17   BARRINGTON D. PARKER, Circuit Judge:

18          Appellant G. Hallett Denton (“Denton”), the executor of the estate of George W. Denton,

19   appeals from a judgment of the United States District Court for the Southern District of New

20   York (Conner, J.). The district court affirmed an order of the Bankruptcy Court (Hardin, J.) that

21   collateral estoppel did not relieve Denton from proving that a debt owed the estate by Appellee

22   Andrew Hyman (“Hyman”) was not dischargeable under § 523(a)(4) of the Bankruptcy Code.

23   That section of the Code precludes discharge of a debt resulting from a debtor’s “defalcation

24   while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). During prior litigation, the

25   Westchester County, New York Surrogate’s Court ruled that Hyman, in dealings with the Denton

26   estate, breached his fiduciary duties and misappropriated assets. Both the Bankruptcy Court and

27   the District Court ruled that collateral estoppel did not attach to this finding because the issue of

28   whether Hyman committed a “defalcation” within the meaning of the Bankruptcy Code had not

29   actually been decided by the Surrogate. We agree and we affirm, although on somewhat

                                                       2
 1   different grounds.

 2                                         I. BACKGROUND

 3          In 1984 Hyman and George W. Denton (“G.W. Denton”) began working for an insurance

 4   agency in Westchester County, New York owned by Henry Deppe. The agency represented the

 5   Guardian Life Insurance Company of America and, among other activities, marketed Guardian

 6   life insurance products through pension plans. These plans were designed and administered

 7   through a separate company, National Pension Services, Inc., also owned by Deppe, which

 8   channeled business to his insurance agency.

 9          In 1987, G.W. Denton and Hyman took over the business from Deppe and formed their

10   own insurance agency, the Denton-Hyman Agency (“Denton-Hyman”), as well as their own

11   pension administration company, also called National Pension Service, Inc. (“NPS”), and a third

12   company, National Pension Actuaries (“NPA”), which generated business for the agency but was

13   not profitable. Each owned fifty percent, and served as director and executive officer, of the

14   three companies. Guardian designated G.W. Denton and Hyman to succeed Deppe as Guardian’s

15   agent for Westchester County under an agreement which provided that, if either left the business,

16   their agency relationship with Guardian would terminate. In starting these businesses, G.W.

17   Denton and Hyman incurred substantial debts – exceeding $1.6 million – which they guaranteed

18   jointly and severally. As was the case with Deppe’s agency, NPS generated business for Denton-

19   Hyman, but operated at a loss.

20          In 1989, thirteen months after starting these businesses, G.W. Denton died unexpectedly

21   and Hyman succeeded him as president and sole director of the three corporations. At that point,


                                                      3
 1   the agency relationship between Guardian and Denton-Hyman automatically terminated and, in

 2   accordance with Guardian’s regulations, both the Denton estate and Denton-Hyman were

 3   ineligible to become shareholders in the new general agency. Denton-Hyman, however, still

 4   owed $1.6 million in start-up debt for which Denton’s estate and Hyman were personally liable.

 5   To service this obligation Hyman looked, among other sources, to commission income earned by

 6   the Denton-Hyman agency during the thirteen-month period prior to G.W. Denton’s death but

 7   received afterwards. After G.W. Denton’s death, Guardian accepted Hyman as its agent and, to

 8   service the Guardian business, he formed the Andrew A. Hyman Agency (“Hyman Agency”).

 9   Hyman continued to operate NPS, and to fund its deficits so that it would continue to generate

10   business for the Hyman Agency. By 1994, when Hyman’s relationship with Guardian

11   terminated, Hyman had liquidated the $1.6 million debt with the estate’s consent, using jointly

12   owned assets – the residual commissions earned by Denton-Hyman – and the earnings of the

13   Hyman Agency.

14           In addition to running the agency and paying down the debt, Hyman also engaged in

15   lengthy negotiations with G. Hallett Denton, the executor of G.W. Denton’s estate, for the

16   purchase of the estate’s fifty percent interest in Denton-Hyman, NPS and NPA. These

17   negotiations were protracted and difficult, and seem to have foundered over the issue of how

18   much of the income Hyman generated belonged to him and how much needed to be shared with

19   the estate. At the end of the day, no agreement was reached.

20          At this point, Denton sued Hyman in Surrogate’s Court. Denton asserted a derivative

21   claim on behalf of Denton-Hyman, seeking to recover “profits earned by Hyman and the Hyman


                                                     4
 1   Agency in exploiting assets of [the jointly-owned] corporations” and “damages suffered as a

 2   result of the diversion of corporate assets.” Hyman asserted a number of affirmative defenses

 3   including ratification and estoppel. After a nine-day trial, the Surrogate’s Court entered

 4   judgment in favor of the estate and against Hyman and the Hyman Agency for $2,734,832,

 5   “representing the net profits obtained by [them] as a result of Hyman’s breach of fiduciary duty,

 6   as an officer, director and 50% shareholder of Denton-Hyman, NPS, and NPA and their

 7   misappropriation of the assets and goodwill of said Corporations.” In so ruling, the Surrogate’s

 8   Court found that Hyman had breached his fiduciary duty by “co-opting the Denton-Hyman, NPS

 9   and NPA enterprise for the benefit of the Hyman Agency and for his own personal enrichment,”

10   using furniture and fixtures of the corporations without compensation, and using “Denton-

11   Hyman overrides to subsidize NPS and NPA and to satisfy the Hyman Agency debt to the

12   Guardian.”

13          Although the Surrogate’s conclusions were undoubtedly damaging to Hyman, they were

14   not accompanied by in-depth analysis of a number of issues relevant to this appeal. The

15   Surrogate, for example, made no findings concerning Hyman’s state of mind: In using jointly

16   owned assets and income generated by his own efforts both to liquidate debt of the estate and to

17   operate the business that was generating the income, was Hyman breaching a fiduciary obligation

18   by being sloppy or venal or was he stealing? In addition, the Surrogate’s decision gave little

19   prominence to the substantial monetary benefits Hyman conferred on the estate. Nor did it

20   specifically address Hyman’s argument that the estate’s representatives acquiesced in, and

21   consented to, Hyman’s conduct over a lengthy period.


                                                      5
 1           In February 2003, Hyman filed for protection under the bankruptcy laws. Denton, as

 2   executor of G.W. Denton’s estate, then filed a claim based on the Surrogate’s Court’s judgment,

 3   to declare that judgment non-dischargeable under § 523(a)(4) of the Bankruptcy Code as a debt

 4   arising from “defalcation while acting in a fiduciary capacity.” Denton contended that the

 5   Surrogate’s findings were conclusive and that Hyman was collaterally estopped from contesting

 6   them.

 7           The Bankruptcy Court found the Surrogate’s Court’s judgment valid and enforceable and

 8   allowed Denton’s claim based on the judgment. However, the court rejected Denton’s contention

 9   that collateral estoppel precluded further litigation over the dischargeability of the debt. The

10   Bankruptcy Court ruled that under § 523(a)(4) “defalcation” was narrower than the concept of

11   “misappropriation” under state law, with defalcation requiring “some portion of misconduct.”

12   The court then concluded that the Surrogate’s Court’s findings failed to satisfy the more

13   restrictive definition. In reaching this conclusion, the court emphasized Denton’s failure to

14   identify any specific conduct of Hyman’s that amounted to a defalcation or that could be

15   characterized as wrongful, illegal or morally reprehensible, “other than the fact that the parties

16   did not reach agreement on a buy out.”

17           Because Denton had voluntarily dismissed alternative claims for relief, and had agreed to

18   abide by the Bankruptcy Court’s resolution of the collateral estoppel issue rather than retry the

19   claim, the Bankruptcy Court issued a final judgment in favor of Hyman, and Denton appealed to

20   the district court. The district court affirmed. Judge Conner ruled that defalcation requires some

21   element of wrongful intent, so as to be more than a “mere negligent” or innocent act, and held


                                                       6
 1   that because the Surrogate’s Court made no finding as to Hyman’s intent, it necessarily failed to

 2   decide the issue of defalcation. The district court found that Hyman’s immediate offer to buy out

 3   the estate’s interest, the three-year-long negotiation over the purchase price, and the pay down of

 4   the $1.6 million in debt did not demonstrate the level of misconduct necessary to trigger the

 5   application of § 523(a)(4). Specifically, Judge Conner concluded that “Debtor’s conduct

 6   throughout was fully consistent with a good faith effort to preserve the business for the mutual

 7   benefit of AHA and the Estate.” This appeal followed.

 8                                             II. DISCUSSION

 9           A. Standard of Review

10           Our review of a district court’s order in its capacity as an appellate bankruptcy court is

11   plenary. In re DeTrano, 326 F.3d 319, 321 (2d Cir. 2003). The factual determinations and legal

12   conclusions of the Bankruptcy Court are, therefore, reviewed independently by this Court. Id.

13   The Bankruptcy Court’s legal conclusions are reviewed de novo and its factual conclusions are

14   reviewed for clear error. Id.

15           B. New York’s Law of Collateral Estoppel

16           To determine whether collateral estoppel applies to the Surrogate’s Court’s judgment, we

17   look to New York law. See Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380

18   (1985); Colon v. Coughlin, 58 F.3d 865, 869 n.2 (2d Cir. 1995). Under New York law, collateral

19   estoppel bars relitigation of an issue when (1) the identical issue necessarily was decided in the

20   prior action and is decisive of the present action, and (2) the party to be precluded from

21   relitigating the issue had a full and fair opportunity to litigate the issue in the prior action.


                                                         7
 1   Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455-56 (1985); see Jeffreys v. Griffin, 1 N.Y.3d 34,

 2   39 (2003); Buechel v. Bain, 97 N.Y.2d 295, 303-04 (2001); see also Khandahar v. Elfenbein, 943

 3   F.2d 244, 247 (2d Cir. 1991). Under New York law, collateral estoppel is a flexible doctrine and

 4   whether to apply it a particular case depends on “general notions of fairness involving a practical

 5   inquiry into the realities of the litigation.” Jeffreys, 1 N.Y.3d at 41.

 6           On this appeal, these principles must be analyzed jointly with others that have special

 7   significance in the bankruptcy context. The basic policy animating the Bankruptcy Code is to

 8   afford the “honest but unfortunate” debtor a fresh start. Marrama v. Citizens Bank of Mass., 127

 9   S. Ct. 1105, 1107 (2007); Grogan v. Garner, 498 U.S. 279, 286-87 (1991); DeTrano, 326 F.3d at

10   322. The consequences to a debtor whose obligations are not discharged are considerable; in

11   many instances, failure to achieve discharge can amount to a financial death sentence. In view of

12   these harsh consequences, exceptions to discharge are to be narrowly construed and genuine

13   doubts should be resolved in favor of the debtor. In re Renshaw, 222 F.3d 82, 86 (2d Cir. 2000);

14   In re Hayes, 183 F.3d 162, 167 (2d Cir. 1999).

15           The first critical question is whether a “defalcation while acting in a fiduciary capacity”

16   under § 523(a)(4) of the Bankruptcy Code is identical to the factual and legal determinations

17   necessarily decided in the prior Surrogate’s Court action. Denton argues that the issue of

18   whether a defalcation occurred was necessarily decided by the Surrogate’s Court’s findings that

19   Hyman breached his fiduciary duty and misappropriated assets. Hyman contends that in view of

20   the pervasive confusion in the federal courts over what constitutes “defalcation” under §

21   523(a)(4), and also in view of the harsh consequences that attach and the requirement that doubts


                                                        8
 1   in a close case such as this should be resolved in his favor, he should not be denied the

 2   opportunity to prove at a trial in Bankruptcy Court that he did not violate § 523(a)(4).

 3          C. Whether “Defalcation” Was Necessarily Decided

 4          While the Code generally allows for the discharge of debts, significant exceptions exist.

 5   DeTrano, 326 F.3d at 322. Among them is § 523(a)(4) excepting from discharge any debt “for

 6   fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” 11 U.S.C. §

 7   523(a)(4). As previously noted, this exception, like most, must be narrowly construed.

 8   Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998) (observing that exceptions to discharge “‘should

 9   be confined to those plainly expressed’”) (quoting Gleason v. Thaw, 236 U.S. 558, 562 (1915));

10   Renshaw, 222 F.3d at 86.

11          There has been much debate among the Circuits over whether a “defalcation” under §

12   523(a)(4) includes all misappropriations or failures to account or only those that evince some

13   wrongful conduct.1 See Zohlman v. Zoldan, 226 B.R. 767, 775 (S.D.N.Y. 1998) (discussing the

14   circuit split). This Circuit, although previously having suggested that “some portion of

15   misconduct” may be required to establish a “defalcation” under § 523(a)(4), has yet to squarely

16   address this issue. Cent. Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 512 (2d Cir. 1937);

17   see Hayes, 183 F.3d at 172 (assuming that defalcation demands “some portion of misconduct,” in

18   finding that the debtor committed a defalcation).



            1
             Defalcation is defined in Black’s Law Dictionary (8th ed. 2004), as “loosely, the failure
     to meet an obligation” and “a non-fraudulent debt.” Id. at 427; see Oxford English Dictionary
     389 (2d ed. 1989) (“a monetary deficiency through breach of trust by one who has the
     management or charge of funds”).

                                                      9
 1          In Herbst, 93 F.2d at 511-12, Judge Learned Hand wrestled with this problem without

 2   resolving it. He wrote:

 3          Colloquially perhaps the word, “defalcation,” ordinarily implies some moral
 4          dereliction, but in this context [the first reference to defalcation in the Bankruptcy
 5          Code] it may have included innocent defaults, so as to include all fiduciaries who
 6          for any reason were short in their accounts. It must be remembered that the
 7          “fiduciary capacity” was limited to “special” or “technical” fiduciaries.
 8          ....
 9          Whatever was the original meaning of “defalcation,” it must here [in the
10          Bankruptcy Act of 1867] have covered other defaults than deliberate
11          malversations, else it added nothing to the words, “fraud or embezzlement.”2
12          ....
13          We must give the words different meanings so far as we can, especially when a
14          contrary interpretation would wrest “defalcation,” if not from its original meaning,
15          at least from that which it must have had in the Act of 1867.
16          ....
17          We do not hold that no possible deficiency in a fiduciary’s accounts is
18          dischargeable; in [In] Re Bernard, 87 F.2d 705, 707 [(2d Cir. 1937)], we said that
19          “the misappropriation must be due to a known breach of the duty, and not to mere
20          negligence or mistake.” Although that word probably carries a larger implication
21          of misconduct than “defalcation,” “defalcation” may demand some portion of
22          misconduct; we will assume arguendo that it does.
23
24          Denton relies on In re Hammond, 98 F.2d 703, 704 (2d Cir. 1938), for the proposition

25   that no actual intent is necessary to establish a defalcation. Hammond involved our

26   determination of whether the unlawful appropriation of a corporate contract constituted a

27   “misappropriation” under the previous version of § 523(a)(4), absent any finding by the lower

28   court of a “conscious wrongdoing” or “purpose to defraud.” Id. at 704, 705. Hammond does not

29   stand for the proposition that a “misappropriation” under this provision can be found absent a

30   wrongful intent. In Hammond, we held that a wrongful or evil intent, if required by the


            2
             The Act found non-dischargeable debts resulting from “defalcation as a public officer, or
     while acting in any fiduciary character,” fraud or embezzlement. Herbst, 93 F.2d at 511.

                                                     10
 1   provision, could be inferred based on the debtor’s intentional unlawful act and by finding the

 2   debtor chargeable with the knowledge that his actions violated the law. Id. at 705.

 3           The Fourth, Eighth, and Ninth Circuits hold that an innocent mistake can constitute a

 4   defalcation. In re Uwimana, 274 F.3d 806, 811 (4th Cir. 2001) (“[N]egligence or even an

 5   innocent mistake which results in misappropriation or failure to account is sufficient.”); In re

 6   Hemmeter, 242 F.3d 1186, 1190 (9th Cir. 2001) (“Even innocent acts of failure to fully account

 7   for money received in trust will be held as non-dischargeable defalcations.”); In re Cochrane,

 8   124 F.3d 978, 984 (8th Cir. 1997) (“Defalcation includes the innocent default of a fiduciary who

 9   fails to account fully for money received.”).3

10           The majority of the Circuits addressing this issue, however, require some level of

11   wrongful conduct in order to find a defalcation under § 523(a)(4). The Fifth, Sixth, and Seventh

12   Circuits require a level of fault greater than mere negligence. In re Schwager, 121 F.3d 177, 185

13   (5th Cir. 1997) (“While defalcation may not require actual intent, it does require some level of

14   mental culpability. It is clear in the Fifth Circuit that a ‘willful neglect’ of fiduciary duty

15   constitutes a defalcation – essentially a recklessness standard.”); Meyer v. Rigdon, 36 F.3d 1375,

16   1384-85 (7th Cir. 1994) (“[A] mere negligent breach of a fiduciary duty is not a ‘defalcation’

17   under section 523(a)(11).”); In re Johnson, 691 F.2d 249, 257 (6th Cir. 1982) (ruling that while

18   “subjective intent to violate a known fiduciary duty or bad faith is irrelevant,” the misuse of

19   monies as the result of negligence or a mistake of fact does not constitute defalcation). The


             3
              The Ninth Circuit does, however, more strictly limit the application of defalcation to
     fiduciary of trusts and relationships that exhibit characteristics of the traditional trust
     relationship. Hemmeter, 242 F.3d at 1189-90.

                                                       11
 1   Tenth Circuit’s standard is not entirely clear but at least requires “some portion of misconduct.”

 2   Compare In re Storie, 216 B.R. 283, 288 (B.A.P. 10th Cir. 1997) (announcing a standard

 3   requiring that includes “intentional, wilful, reckless or negligent” breaches of fiduciary duty),

 4   with In re Millikan, 188 Fed. App’x 699, 702 (10th Cir. 2006) (unpublished) (declining to

 5   identify a specific standard but requiring “some portion of misconduct” to prove defalcation).

 6   The First Circuit set the highest bar, requiring a showing of extreme recklessness, “akin to the

 7   level of recklessness required for scienter [in securities law].” In re Baylis, 313 F.3d 9, 20 (1st

 8   Cir. 2002). In so ruling, the First Circuit interpreted “defalcation” as requiring a degree of fault,

 9   “closer to fraud, without the necessity of meeting a strict specific intent requirement.”4 Id. at 18-

10   19.

11          In light of this persistent confusion, we now align ourselves with the First Circuit, see

12   Baylis, 313 F.3d at 20, in holding that defalcation under § 523(a)(4) requires a showing of

13   conscious misbehavior or extreme recklessness – a showing akin to the showing required for

14   scienter in the securities law context. See Ganino v. Citizens Utils. Co., 228 F.3d 154, 168 (2d

15   Cir. 2000); Novak v. Kasaks, 216 F.3d 300, 308 (2d Cir. 2000); Press v. Chemical Inv. Servs.

16   Corp., 166 F.3d 529, 538 (2d Cir. 1999). We believe that these concepts – well understood and

17   commonly applied in the securities law context – strike the proper balance under § 523(a)(4).

18   This standard ensures that the term “defalcation” complements but does not dilute the other terms


            4
             The Eleventh Circuit also has yet to adopt a clear standard. See In re Fernandez-Rocha,
     451 F.3d 813, 817 (11th Cir. 2006) (discussing the different possible interpretations of
     defalcation); Quaif v. Johnson, 4 F.3d 950, 955 (11th Cir. 1993) (finding a defalcation where the
     improper transfer of funds by a fiduciary “was far more than an innocent mistake or even
     negligence”).

                                                       12
 1   of the provision – “fraud,” “embezzlement,” and “larceny” – all of which require a showing of

 2   actual wrongful intent. See In re Stern, 231 B.R. 25, 26 (S.D.N.Y. 1999) (noting that larceny

 3   under § 523(a)(4) requires a showing of fraudulent intent to convert another’s property to

 4   debtor’s own use); In re Caulfield, 192 B.R. 808, 818 (Bankr. E.D.N.Y. 1996) (requiring a

 5   showing of fraudulent intent for larceny and embezzlement); see also In re Zois, 269 B.R. 89,

 6   101 (Bankr. S.D.N.Y. 1999) (requiring a showing of intentional deceit to establish “fraud” under

 7   this section); 4 Collier on Bankruptcy § 523.10(1)(a) (15th ed. rev. 2007) (“‘Fraud’ for purposes

 8   of this exception has generally been interpreted as involving intentional deceit, rather than

 9   implied or constructive fraud.”).

10          By requiring the courts to make appropriate findings of conscious misbehavior or

11   recklessness in the course of dischargeability litigation, the standard we adopt today insures that

12   the harsh sanction of non-dischargeability is reserved for those who exhibit “some portion of

13   misconduct.” Herbst, 93 F.2d at 512. The standard does not reach fiduciaries who may have

14   failed to account for funds or property for which they were responsible only as a consequence of

15   negligence, inadvertence or similar conduct not shown to be sufficiently culpable. This standard,

16   we believe, also has the virtue of ease of application since the courts and litigants have reference

17   to a robust body of securities law examining what these terms mean.

18          In finding that Hyman breached his fiduciary duty by “misappropriating and co-opting

19   assets of the jointly-owned companies for his personal benefit,” the Surrogate’s Court made no

20   express findings with regard to Hyman’s state of mind. We assume that the Surrogate concluded

21   that under New York law such findings were not necessary, since misappropriation and breach of


                                                      13
 1   fiduciary duties apparently do not, under New York law, consistently require proof of a culpable

 2   mental state. See Strough v. Bd. of Supervisors, 3 N.Y.S. 110, 112 (N.Y. Gen. Term 1888),

 3   modified on other grounds and aff’d, 119 N.Y. 212 (1890) (holding defendant liable for “illegal,

 4   though innocent in intent, misappropriation”); Matter of Happy Time Fashions, 7 B.R. 665, 670

 5   (Bankr. S.D.N.Y. 1980) (noting that good faith or innocent motives are no defense to a corporate

 6   officer’s breach of fiduciary duties).5

 7          Having clarified the standard under § 523(a)(4) and given the unique circumstances of

 8   this case, we decline to mechanically apply collateral estoppel. See Jeffreys, 1 N.Y. 3d at 41;

 9   People v. Roselle, 84 N.Y.2d 350, 357 (1994) (“[C]ollateral estoppel, a flexible doctrine, should

10   not be mechanically applied just because some of its formal prerequisites, like identity of the

11   parties, identity of issues, a final and valid prior judgment and a full and fair opportunity to

12   litigate the prior determination, may be present.”); Halyalkar v. Bd. of Regents, 72 N.Y.2d 261,

13   269 (1988) (declining to give an administrative consent order preclusive effect and noting that

14   the doctrine of collateral estoppel “should never be rigidly or mechanically applied”). The

15   Surrogate had neither the ability nor the incentive to apply the standard we announce. Moreover,


            5
                The New York Jurisprudence states:

            Corporate directors and officers will be held accountable for the wrongful use,
            diversion, or misappropriation of corporate funds or property in an action
            appropriate for the enforcement of such liability. Good intentions do not justify
            the misapplication or misuse of corporate assets where the directors know that the
            use they are making of the assets is not for the benefit of the company, but for the
            use and benefit of other enterprises in which they are interested.

     N.Y. Jur. 2d, 14A Business Relationships § 695 (2006).


                                                       14
 1   the record contains evidence of Hyman’s good faith in using the proceeds of the new Agency to

 2   pay off the debts for which both he and the Denton estate were liable, and in attempting for years

 3   to negotiate a buy-out with the Denton estate6 – all of which could militate against the required

 4   showing of recklessness or conscious misbehavior. As noted above, the Surrogate’s Court was

 5   not required to take such considerations into account when reaching its conclusions concerning

 6   misappropriation and breach of fiduciary duty. In view of these complexities, we are loath to

 7   conclude that an identical issue was necessarily decided or that Hyman had a full and fair

 8   opportunity to contest his state of mind. In addition to the murkiness of the law, the harsh

 9   consequences that follow a finding of nondischargeability and the requirement that exceptions be

10   narrowly construed both counsel against precluding a plenary trial in Bankruptcy Court, had the

11   estate not voluntarily agreed to forego one here. Accordingly, we conclude that collateral

12   estoppel does not attach.

13                                         III. CONCLUSION

14          The district court’s judgment is AFFIRMED.

15



            6
              Denton argues that the Surrogate’s Court effectively did find an absence of good faith in
     rejecting Hyman’s affirmative defenses of ratification and consent. Even if the Surrogate did
     clearly reject Hyman’s argument that Denton consented to these acts – which is entirely unclear –
     a lack of good faith was not necessarily decided by the Surrogate’s rejection of Hyman’s
     affirmative defenses. Even absent Denton’s consent or ratification of Hyman’s acts, good faith
     could still be found based on evidence in the record. As indicated by the Bankruptcy Court and
     the district court, there is other evidence, namely the extensive buy-out negotiations and the
     payment of Denton-Hyman debt that stands as evidence of good faith on Hyman’s part; therefore
     a lack of ratification and consent would not necessarily decide the existence of good faith.


                                                     15
