McCarthy ex rel. Estate of Vogel Van & Storage, Inc. v. Navistar Financial Corp.

142 F.3d 571, 1998 U.S. App. LEXIS 8013, 1998 WL 203035

• Court: Court of Appeals for the Second Circuit
• Decided: April 27, 1998
• Docket: Nos. 97-5055, 97-5057
• Status: Published

Opinion

PER CURIAM:

William M. McCarthy, trustee for the estate of Vogel Van & Storage, Inc. (“Vogel Van”), appeals from a judgment of the United States District Court for the Northern District of New York, affirming the bankruptcy court’s conclusion that a payment by Vogel Van to appellees was made in the ordinary course of business for purposes of 11 U.S.C. § 547(c)(2) and was therefore not avoidable as a preferential transfer pursuant to Section 547(b). We affirm for substantially the reasons stated in Judge Scullin’s opinion. In re Vogel Van & Storage, Inc., 210 B.R. 27, 34-37 (N.D.N.Y.1997).

Because we agree with Judge Scullin that Vogel Van’s payment was made in the ordinary course of business, we do not reach appellees’ assertion on cross-appeal that Key Bank, a creditor of Vogel Van, was not entitled under 11 U.S.C. § 547(b) to pursue, on behalf of the bankruptcy estate, the appeal from the bankruptcy court’s judgment.

We therefore affirm.