City of New York v. 1820-1838 Amsterdam Equities, Inc. (In re 1820-1838 Amsterdam Equities, Inc.)

176 B.R. 127, 1994 U.S. Dist. LEXIS 17766
CourtDistrict Court, S.D. New York
DecidedDecember 13, 1994
DocketNo. M-47 (RWS)
StatusPublished
Cited by2 cases

This text of 176 B.R. 127 (City of New York v. 1820-1838 Amsterdam Equities, Inc. (In re 1820-1838 Amsterdam Equities, Inc.)) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of New York v. 1820-1838 Amsterdam Equities, Inc. (In re 1820-1838 Amsterdam Equities, Inc.), 176 B.R. 127, 1994 U.S. Dist. LEXIS 17766 (S.D.N.Y. 1994).

Opinion

OPINION

SWEET, District Judge.

In Re Amsterdam

Creditor-Appellant the City of New York (the “City”) seeks leave to appeal an order of [128]*128the Honorable Prudence B. Abram, Bankruptcy Judge, of the United States Bankruptcy Court for the Southern District of New York denying its motion to dismiss the Debtor’s Chapter 11 petition.

For reasons set foi'th below, leave to appeal is denied at this time.

The Parties

The Debtor, 1820-1838 Amsterdam Equities (“Amsterdam”), is the owner of a commercial building located at that address in Upper Manhattan. The debtor filed for voluntary bankruptcy under Chapter 11 on May 4, 1992.

The City is a creditor in the bankruptcy proceeding. The Debtor is in default of over $400,000 in City Real estate taxes, water and sewer charges and other assessments.

Facts and Prior Proceedings

Amsterdam filed for voluntary bankruptcy under Chapter 11 on May 4, 1992. The principal asset is a commercial real property at 1818-1838 Amsterdam Avenue (the “Property”). Dominion Financial Corporation (“Dominion”) holds a $1 million first mortgage lien on the property. The principal of Dominion is Mr. Rinzler (“Rinzler”).

Pursuant to a motion made by the City on July 29, 1994 to dismiss the bankruptcy petition, for contempt and for sanctions, the Bankruptcy Court found that the Property “has become subject to a state of apparent lawlessness under which various tenants and/or occupants have effectively taken control of [the Property] and have refused to pay rent and taxes.” Amended Emergency Order to Permit Repairs and Access, November 9, 1994 (PBA).

In that order Judge Abram, who presides over the Chapter 11 proceedings for Amsterdam, found that prompt action was needed to preserve the Debtor’s estate and the interest of the general public and ordered, in summary: (1) that Dominion was authorized to do the work to cure the violations cited by the City and that it would have financial liability for the repairs and U.S. Marshal protection to safeguard the workers; and (2) that the City could take no further enforcement action against the Debtor and its officers without further Bankruptcy Court authorization.

The Bankruptcy Court did not hear oral argument on the motion to dismiss before issuing its November 9, 1994 Order. Oral argument on the motion to dismiss was heard on November 10,1994. At the November 10 hearing, Judge Abram denied a stay of her non-enforcement provision in the November 9 Order and after hearing from both parties, denied the City’s motion to dismiss. She reserved decision on the sanctions and contempt portion of the City’s motion.

The City gave Judge Abram an order to sign, but the Court declined to sign the order since it was not exclusively directed to the denial of the motion to dismiss. No written order to dismiss has been filed as to the motion to dismiss.

On November 22, 1994, the Honorable Robert P. Patterson, District Judge, heard the City’s emergency motion for leave to appeal the portion of Judge Abram’s Order that halted the City’s enforcement action and for a stay of the Order pending appeal. Judge Patterson granted the motion for leave to appeal and the stay of the Order pending an appeal of that portion of the Order requiring the City to take no criminal enforcement action with respect to the building and fire code violations. November 29 was set as the hearing date on the non-emergency motion for leave to appeal the denial of a motion to dismiss the bankruptcy petition.

On November 29, before this Court, both parties were heard with respect to the motion for leave to appeal the denial of the motion to dismiss.

No plan for reorganization has been submitted in the bankruptcy proceeding.

Discussion

In seeking leave to appeal, the City has correctly asserted that the Bankruptcy Court’s Order is interlocutory in nature. The fact that the denial of the motion to dismiss was oral instead of written does not prevent this Court from hearing this motion for leave to appeal the denial of the motion to dismiss.

[129]*129Appeals from interlocutory orders in bankruptcy cases are governed by 28 U.S.C. § 158, which provides in part:

(a) The district courts of the United States shall have jurisdiction to hear appeals ... with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title.
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(e) an appeal under subsections (a) and (b) of this section shall be taken in the same manner as appeals in civil proceedings generally taken to the courts of appeals from the district courts....

28 U.S.C. § 158 (1993).

Although there are no particular statutory criteria for determining whether to grant leave to appeal an interlocutory order, courts have consistently held that such orders will not be granted absent “exceptional circumstances.” See, e.g., In re Johns-Manville Corp., 47 B.R. 957, 960 (S.D.N.Y.1985); In re Manville Forest Products Corp., 47 B.R. 955, 956 (S.D.N.Y.1985), Coopers & Lybrand v. Livesay, 437 U.S. 463, 474-75, 98 S.Ct. 2454, 2460-61, 57 L.Ed.2d 351 (1978) (applying same rationale to 28 U.S.C. § 1292). To do otherwise “would contravene the well-established judicial policy of discouraging interlocutory appeals and avoiding the delay and disruption which results from such piecemeal litigation.” In re Johns-Manville Corp., 47 B.R. at 960 citing In re Casco Bay Lines, Inc., 8 B.R. 784, 786 (Bankr. 1st Cir.1981).

When determining whether to grant an interlocutory appeal from a decision of the bankruptcy court, this Court generally applies the standard governing interlocutory appeals from the district courts to the courts of appeals. See 28 U.S.C. § 1292(b); In re Beker Industries Corp., 89 B.R. 336, 341 (S.D.N.Y.1988); In re Johns-Manville, 47 B.R. at 960; In re Manville Forest Products, 47 B.R. at 957; 1 Lawrence King, Collier on Bankruptcy P 3.03[6][d][i], at 3-194 to -195 (15th ed. 1991). Under this standard, leave to appeal an interlocutory order will be granted only if the order involves a controlling question of law over which there is a substantial ground for difference of opinion and if an immediate appeal would materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). The City cannot meet these requirements.

The City moved for a dismissal under 11 U.S.C. § 1112 which says in pertinent part:

... on request of a party of interest ... the court ...

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176 B.R. 127, 1994 U.S. Dist. LEXIS 17766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-1820-1838-amsterdam-equities-inc-in-re-1820-1838-nysd-1994.