In re CPJFK, LLC

496 B.R. 65, 2011 Bankr. LEXIS 5721, 2011 WL 1298429
United States Bankruptcy Court, E.D. New York·Decided March 31, 2011·No. No. 10-50566-CEC·Published·Cited by 7 cases

Opinion

DECISION

CARLA E. CRAIG, Chief Judge.

Before this Court is the application of CPJFK LLC, the debtor, and its principals, Sunil Mir and Charles Moráis, for a stay of this Court’s order authorizing a sale of the debtor’s assets (the “Sale Order”), pending appeal. The chapter 11 trustee of the debtor’s estate, Alan Nissel-[67]*67son (the “Trustee”), Neshgold, LLC, the secured lender (“Neshgold”), the Hotel Trades Council and Hotel Association of NYC Inc. Employee Benefit Funds, The New York Hotel & Motel Trade Council, AFL/CIO (the “Union and Fund Creditors”) oppose the motion. Familiarity with the background of this case, and with this Court’s decision dated March 30, 2011 (“Decision”) authorizing the sale is assumed.

At the hearing, the Debtor argued that the sale should be stayed to permit the Debtor to be restored to possession of the Hotel (as defined in the Decision) and to pursue confirmation of the Debtor’s proposed Plan. To the extent that this may be viewed as a motion to reconsider under Bankruptcy Rule 9023 (which incorporates by reference Fed.R.Civ.P. 59), this Court’s denial of the Debtor’s application for a stay on March 16, 2011, or to reconsider the Sale Order, this application is denied.

As the district court noted in United States v. Sessa, Nos. 92-CR-351 (ARR), 97-CV-2079 (ARR), 2011 WL 867175, at *1 (E.D.N.Y. Mar. 8, 2011),

Courts have recognized three major grounds justifying reconsideration pursuant to Rule 59(e): “an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Board, 956 F.2d 1245, 1255 (2d Cir.1992).

Sessa, 2011 WL 867175, at *1

“A motion for reconsideration is neither an occasion for repeating old arguments previously rejected nor an occasion for making new arguments that could have been previously advanced.” Associated Press v. U.S. Dep’t of Def., 395 F.Supp.2d 17, 19 (S.D.N.Y.2005).

Here, no change of controlling law or new evidence has been presented; the arguments made amounted to a rehash of arguments previously made. The fact that the Debtor’s counsel proffered copies of emails supposedly confirming the availability of funding in the event that the Debtor is restored to possession does not change this conclusion. In the numerous hearings held in this case, the Debtor had ample opportunity to present such evidence and pursue their motion to remove the Trustee, but did not do so. “[A] party cannot use a Rule 59(e) motion to cure its own procedural failures or to introduce new evidence or advance arguments that could and should have been presented originally to the court.” Scheidelman v. Henderson (In re Henderson), Bankr.No. 08-60255, Adv. No. 09-80035, 2010 WL 4366021, at *5 (Bankr.N.D.N.Y. Oct. 28, 2010).

To the extent that this is an application for a stay pending appeal, it is also denied. An application for a stay pending appeal from a decision of a bankruptcy court is governed by Bankruptcy Rule 8005, which provides, in relevant part:

A motion for a stay of the judgment, order, or decree of a bankruptcy judge, for approval of a supersedeas bond, or for other relief pending appeal must ordinarily be presented to the bankruptcy judge in the first instance. Notwithstanding Rule 7062 but subject to the power of the district court and the bankruptcy appellate panel reserved hereinafter, the bankruptcy judge may suspend or order the continuation of other proceedings in the case under the Code or make any other appropriate order during the pendency of an appeal on such terms as will protect the rights of all parties in interest. A motion for such relief, or for modification or termi[68]*68nation of relief granted by a bankruptcy judge, may be made to the district court or the bankruptcy appellate panel, but the motion shall show why the relief, modification, or termination was not obtained from the bankruptcy judge. The district court or the bankruptcy appellate panel may condition the relief it grants under this rule on the filing of a bond or other appropriate security with the bankruptcy court.

Fed. R. Bank. P. 8005.

The decision as to whether or not to grant a stay of an order pending appeal lies within the sound discretion of the court. See, e.g., In re Overmyer, 53 B.R. 952, 955 (Bankr.S.D.N.Y.1985) (“A motion for a stay pending appeal, as authorized under Bankruptcy Rule 8005, is discretionary.”).
Though the factors that must have to be satisfied have been stated in slightly different ways, and sometimes in a different order, it is established that to get a stay pending appeal under Rule 8005, a litigant must demonstrate that:
(1) it would suffer irreparable injury if a stay were denied;
(2) there is a substantial possibility, although less than a likelihood, of success on the merits of movant’s appeal;
(3) other parties would suffer no substantial injury if the stay were granted; and that
(4) the public interest favors a stay.
See, e.g., Hirschfeld v. Bd. of Elections, 984 F.2d 35, 39 (2d Cir.1992[1993]); In re DJK Residential, LLC, 2008 WL 650389 (S.D.N.Y. Mar. 7, 2008) (Lynch, J.); In re WestPoint Stevens, Inc., No. 06 Civ. 4128, 2007 WL 1346616, at *4 (S.D.N.Y. May 9, 2007) (Swain, J.).
The burden on the movant is a “heavy” one. See, e.g., DJK 2008 WL 650389, at *2; see also United States v. Private Sanitation Indus. Ass’n of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir.1995). To be successful, the party must “show satisfactory evidence on all four criteria.” In re Turner, 207 B.R. 373, 375 (2d Cir. BAP 1997) (citations and internal quotation marks omitted).
Moreover, if the movant “seeks the imposition of a stay without a bond, the applicant has the burden of demonstrating why the court should deviate from the ordinary full security requirement.” DJK 2008 WL 650389, at *2; WestPoint Stevens, 2007 WL 1346616, at *4

In re General Motors Corp., 409 B.R. 24, 30 (Bankr.S.D.N.Y.2009)

While a number of lower courts within the Second Circuit have held that the failure of the movant to satisfy any of the four criteria compels denial of a motion for a stay pending appeal, e.g., In re Baker, No. CV05-3487(CPS), 1-01-24227(DEM), 2005 WL 2105802, at *3 (E.D.N.Y. Aug. 31, 2005), other courts have approached the question as a balancing test, e.g., ACC Bondholder Grp. v. Adelphia Commc’ns Corp. (In re Adelphia Commc’ns Corp.), 361 B.R. 337, 347 (S.D.N.Y.2007). See Albicocco v. Albicocco (In re Albicocco), No. 06-CV-3409 (JFB), 2006 WL 2620464, at *1 n. 2 (E.D.N.Y. Sept. 13, 2006) (collecting cases but declining to decide the appropriate standard). Even under the less stringent balancing test standard, this application must be denied.

Free access — add to your briefcase to read the full text and ask questions with AI

In re CPJFK, LLC, 496 B.R. 65, 2011 Bankr. LEXIS 5721, 2011 WL 1298429 (N.Y. 2011).

496 B.R. 65 (In re CPJFK, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Untitled Case
S.D. New York, 2026
In Re: Ronald Joseph Tenore
S.D. New York, 2025
In Re: Christopher Mongiello
S.D. New York, 2024
Lorraine Santoli
S.D. New York, 2021