Ales v. Stern et al
Filing
24
ORDER granting 14 Motion for Reconsideration. SO ORDERED that appellant's motion seeking reconsideration of my February 3, 2014 order is granted but, upon reconsideration, I adhere to my original determination. Ordered by Judge Sandra J. Feuerstein on 3/11/2014. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------)(
ALBERT ALES,
Appellant,
ORDER
13 CV 6783(SJF)
-against-
FILED
RICHARD L. STERN, BRIDIE
CHRISTO FORA TOS, AIDA BUGEJA, and
WILLIAM CHRISTOFORA TOS,
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N Y
*
Appellees.
--------------------------------------------------------------)(
MAR 11 2014
*
LONG ISl.AHO OFFICE
FEUERSTEIN, J.,
On October 16, 2013, appellant Albert Ales ("appellant") filed in the United States
Bankruptcy Court for the Eastern District of New York ("the bankruptcy court") a notice of appeal
to this Court from a judgment of the bankruptcy court, dated October 16,2013, authorizing and
directing the escrow agent to deliver the escrow deposit to the Chapter 7 Trustee, Richard L. Stem
("the Trustee"), by delivering a check to the Trustee for eighty-one thousand dollars ($81,000.00),
plus any interest earned thereon, made jointly payable to Richard L. Stem as Chapter 7 Trustee of
William Christoforatos, Bridie Christoforatos and Aida Bugeja. 1 The notice of appeal and
"Deficient Record on Appeal" were transmitted to this Court on December 3, 2013.
On or about December 19,2013, the last day for appellant to timely file an appellate brief,
appellant's counsel filed an application, inter alia, requesting a thirty-two (32)-day extension of
time, or until Tuesday, January 21, 2014, to file an appellate brief. By order dated December 20,
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The underlying adversary proceeding seeks a determination of the parties' rights to an
eighty-one thousand dollar ($81 ,000.00) down payment paid into an escrow deposit held by
Kenneth L. Apple, Esq., as the escrow agent, under a Residential Contract of Sale signed by
appellant for the purchase of certain real property owned by the debtor, William Christoforatos
("the debtor"), and appellees Bridie Christoforatos and Aida Bugeja (collectively, "appellees").
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2013, appellant's application seeking an extension of time until Tuesday, January 21,2014 to file
an appellate brief was granted.
On January 24, 2014, the Trustee filed an application seeking to dismiss the appeal based
upon, inter alia, appellant's failure to comply with Rules 8006 and 8009 of the Bankruptcy Rules
and this Court's December 20,2013 order, i.e., his failure (a) to file "a designation of the items to
be included in the record on appeal and a statement of the issues to be presented" ("Designation
and Statement") within fourteen (14) days after filing the notice of appeal, Fed. R. Bankr. P. 8006,
and (b) to file an appellate brief on or before January 21, 2014. On January 25, 2014, appellant
filed: (I) an application seeking a further extension of time to serve and file an appellate brief until
February 4, 2014; and (2) a Designation and Statement, both of which are electronically signed
only by Mr. Slenn, who is not admitted to practice before this Court.
By order dated February 3, 2014, appellant's application seeking a further extension of time
to file an appellate brief was denied; the Trustee's and appellees' applications seeking dismissal of
the appeal were granted; and the appeal was dismissed pursuant to Rule 800l(a) of the Bankruptcy
Rules for appellant's failure to comply with Rules 8006 and 8009 of the Bankruptcy Rules.
On February 4, 2014, Mr. Slenn filed: (I) a letter motion for leave to appear pro hac vice
for appellant on this appeal; and (2) a letter motion for reconsideration of the February 3, 2014
order. On February 7, 2014, the Trustee filed opposition to the motion for reconsideration.
Thereafter, Mitchell A. Stein, Esq., the senior partner in the law firm of which Mr. Slenn is a
partner, who is admitted to practice before this Court, filed a letter dated February 12,2014 in
further support of the motion for reconsideration, which the Court construes to be a reply to the
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Trustee's opposition.' For the reasons set forth below, Mr. Slenn's motion to appear pro hac vice
for appellant on this appeal is denied and his motion for reconsideration is granted but, upon
reconsideration, I adhere to my original determination.
I.
Discussion
A.
Pro Hac Vice Motion
Rule 1.3(c) of the Local Rules of the United States District Courts for the Southern and
Eastern Districts of New York ("Local Civil Rule 1.3(c)") provides, in relevant part:
"A member in good standing of the bar of any state • • * may be permitted to argue
or try a particular case in whole or in part as counsel or advocate, upon motion
(which may be made by the applicant) and upon filing with the Clerk of the District
Court a certificate of the court for each of the states in which the applicant is a
member of the bar, which has been issued within thirty (30) days offiling and states
that the applicant is a member in good standing of the bar of that state court. • • *"
(emphasis added).
In his declaration in support of his pro hac vice motion, Mr. Slenn indicates that he is a
member in good standing of the bars of the Commonwealth of Pennsylvania and the States of New
Jersey, California and Florida, yet he submits only certificates of good standing from the State Bars
of California and Florida. Moreover, although the Certificate of Standing from the State Bar of
California is dated January 23, 2014, within thirty (30) days of the date Mr. Slenn filed the pro hac
vice motion, the certificate from the Florida Bar is dated November 21,2013, seventy-five (75)
days prior to the date Mr. Slenn filed the pro hac vice motion. Accordingly, Mr. Slenn's motion
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The Trustee's request, in his sur-reply, to have the Court set "a briefing schedule for a
motion pursuant to 1128 U.S.C. Section 1927 or Bankruptcy Rule 8020 for sanctions for this
frivolous appeal and motion practice," (Sur-Reply at 2), is denied. Counsel may make any
appropriate motion in accordance with the Federal Rules and my individual rules without leave
of Court.
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for permission to appear pro hac vice for appellant on this appeal is denied and Mr. Slenn is still
not permitted to appear on behalf of appellant in this appeal.
B.
Reconsideration
Rule 8015 of the Bankruptcy Rules "is the sole basis on which a party to a bankruptcy
appeal may seek reconsideration of an order disposing of a bankruptcy appeal." In re Terrestar
Com., No. !3 Civ. 562,2013 WL 5880695, at* I (S.D.N.Y. Oct. 29, 2013); ~also In re Heath
Global, Inc., No. 12 Civ. 8966,2013 WL 6722773, at* I (S.D.N.Y. Oct. 9, 2013); In re Motors
Liquidation Co., No. 09 Civ. 7794,2010 WL 3565494, at* I (S.D.N.Y. Sept. 10, 2010). "While
the standard for granting a motion under Rule 80 15 is not set forth in the rule itself, the notes direct
attention to Rule 40 of the Federal Rules of Appellate Procedure[,]" In re AppOnline.com, Inc.,
321 B.R. 614, 626 (E.D.N.Y. 2003), aff'd, 128 Fed. Appx. 171 (2d Cir. Jan. 24, 2004);
~also
In
re Terrestar, 2013 WL 5880695, at * I ("Rule 8015 incorporates the same standard as a petition for
panel rehearing pursuant to Fed. R. App. P. 40(a)."), which "requires the party moving for
reconsideration to 'state with particularity each point of law or fact that the petitioner believes the
court has overlooked or misapprehended."' In re Terrestar, 2013 WL 5880695, at* I (quoting Fed.
R. App. P. 40(a)(2)); see also In re AppOnline.com, 321 B.R. at 626. "The standard for rehearing
pursuant to Rule 8015 is strict." In re CBI Holding Co., Inc., Nos. 94 B. 43819,01 CV 0131,2010
WL 2287013, at* I (S.D.N.Y. June 7, 2010).
"The purpose of a petition for rehearing is to direct the court's attention to some material
matter of law or fact which it has overlooked in deciding the case, and which, had it been given
consideration, would probably have brought about a different result." In re Heath Global, 2013
WL 6722773, at* I (quotations and citation omitted); see also In re Motors Liquidation,2010 WL
4
3565494, at* I ("[A] motion for rehearing may be granted only where the court has overlooked
matters or controlling decisions which might have materially influenced the earlier decision.")
"Thus, the function of a petition for rehearing is not to permit the petitioner to reargue his case; to
attempt to do so would be an abuse of the privilege of making such a petition." In re Heath Global,
2013 WL 6722773, at • I (quotations and citation omitted); see also In re Motors Liguidatio!!,
2010 WL 3565494, at* I; In re CBI Holding, 2010 WL 2287013, at* I. "Accordingly, neither
new evidence nor new arguments are considered valid bases for Rule 80 I 5 relief." In re Heath
Global, 2013 WL 6722773, at* I (quotations and citation omitted); see also Freedom Holdings.
Inc. v. Spitzer, 363 F .3d 149, I 5 I (2d Cir. 2004) (holding that ordinarily, courts do not address
arguments made for the first time in a petition for rehearing pursuant to Fed. R. App. P. 40(a));
DeWeerth v. Baldinger, 38 F.3d 1266, 1274 (2d Cir. 1994) ("[A]rguments raised for the first time
on a petition for rehearing are deemed abandoned unless manifest injustice would otherwise
result.").
I grant appellant's motion for reconsideration for the purpose of considering whether he has
established that I overlooked or misapprehended any principle of law or material fact. Neither Mr.
Slenn nor Mr. Stein has identified any fact or principle oflaw which he believes that I overlooked
or misapprehended in the February 3, 2014 order. Rather, Mr. Slenn contends, inter alia: (I) that
"[t]he Court may find excusable neglect to accept late filings caused by inadvertence, mistake, or
carelessness, as well as by intervening circumstances beyond the party's control," (Letter Motion
by Mr. Slenn dated February 4, 2014 ["Mot."], at 1); (2) that "the delay is short, only a [sic] 14
days, with no danger of prejudice to the debtor or Trustee," (Mot. at 2); (3) that "the escrowed
funds are merely a windfall [to the debtor]," QQ.,_); (4) that he not only "mistakenly mis-calendared
the deadline [for filing a brief on the appeal]," as he contended in his application for an extension
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of time to file an appellate brief, but was also "bedridden* * * in Pennsylvania with a severe case
of the flu and high fever which had [him] incapacitated from [January 26, 2014] through early
[January 31, 2014]," (id.), a new"fact" that he failed to mention at any time prior to his motion for
reconsideration'; (5) that his delay in filing a pro hac vice motion was because one of his CLE
providers failed to forward a record of his attendance to the bar of the Commonwealth of
Pennsylvania, as a result of which the Commonwealth contended that he "was not CLE compliant,"
(id.), and he did not learn about that problem until January 31, 2014; (6) that he "did not include
transcript [sic] or other documents introduced at trial because the arguments [appellant] [is] making
[on the appeal] do not require them," GQJ; and (7) that "dismissal is a harsh sanction" and
reconsideration should be granted "in the interest of justice and that of [appellant] to have the
appeal heard on the merits and allow [him] the opportunity to fix the issues." C!.QJ In his reply,
Mr. Stein contends, inter alia:(!) that the bankruptcy court clerk's purportedly premature
transmittal of the "Deficient Record on Appeal" to this Court, in essence, constitutes excusable
neglect because his firm was not retained to represent appellant until after such transmittal and,
thus, had "no opportunity * * * to submit a proper Designation and Statement," (Reply at 5)
(emphasis omitted); and (2) that appellant "does not need the transcription of testimony in order to
perfect the appeal," (Reply at 7) (emphasis omitted).
Mr. Slenn and Mr. Stein seek solely to relitigate issues already decided by this Court in the
February 3, 2014 Order, i.e., whether there was excusable neglect for appellant's repeated filing
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Although Mr. Slenn filed his motion for an extension of time to file an appellate brief
on January 25, 2014, one (1) day prior to purportedly becoming "bedridden," he was capable of
writing a two (2)-page letter in reply to the Trustee's and appellees' opposition to his motion and
filing it with the Court on January 30, 2014, when he was supposedly still "bedridden." Nowhere
in that January 30, 2014letter does Mr. Slenn indicate that he was ill in any way, much less
"bedridden" with a "severe case of the f1 u."
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failures in this appeal, whether any party is prejudiced by appellant's dilatoriness and whether the
Designation of the record on appeal was complete. Mr. Slenn also improperly seeks to introduce
new facts not before this Court, i.e., that he was "bedridden" for almost a week from the day after
he filed his motion for an extension of time, although that did not prevent him from filing a two
(2)-page reply to the Trustee's and appellees' oppositions to his motion which failed to indicate in
any way that he was not feeling well, much less "severely ill" or "bedridden," during that period;
and that a CLE reporting problem prevented him from filing a pro hac vice motion earlier,
although, as stated above, he still has not filed a pro hac vice motion in accordance with Local
Civil Rule l.3(c) to date, notwithstanding his purported correction of the CLE reporting problem
over one(!) month ago. Moreover, contrary to Mr. Slenn's contention, where, as here, the rules
and court orders are clear, inadvertence, mistake, or carelessness of an attorney does not constitute
excusable neglect. See Zubair v. Entech Engineering. P.C.,- Fed. Appx. - , 2014 WL 151033,
at* I (2d Cir. Jan. 16, 2014) (summary order) ("[D]istrict courts exceed their discretion in granting
a motion for extension of time for excusable neglect or good cause when attorney errors are the
cause of the untimely filing."); In re Johns-Manville Corp., 476 F.3d 118, 124 (2d Cir. 2007)
("[A]bsent extraordinary circumstances, attorney inadvertence is not excusable neglect."); In re
Enron Com., 419 F.3d 115, 126 (2d Cir. 2005) ("[I]nadvertence, ignorance ofthe rules, or
mistakes construing the rules do not usually constitute excusable neglect." (quotations and citation
omitted)); Shorette v. Harrington, 234 Fed. Appx. 3, 5 (2d Cir. May 9, 2007) (summary order)
(finding that a "law office calendaring error
* * * does not constitute 'excusable neglect.'")
Mr. Stein also improperly raises an argument for the first time in his reply on the motion
for reconsideration, i.e., that the bankruptcy court's purportedly premature transmittal of a
"Deficient Record on Appeal" to this Court, prior to the filing of a Designation and Statement,
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somehow excuses appellant's failure to comply with any of the bankruptcy or court rules or orders
to date. Upon being retained as counsel for appellant, even the most cursory inspection of the
Court's docket should have alerted experienced counsel to the fact that the Designation and
Statement had not been filed and that the record on appeal that was transmitted to this Court was,
thus, deficient, regardless of whether the transmittal of the record on appeal by the bankruptcy
court to this Court was proper or not. Counsel should have then promptly moved for an extension
of time to file a Designation and Statement and to have the appeal remanded to the bankruptcy
court, if necessary, to compile the record on appeal, but did nothing until the Trustee moved to
dismiss the appeal after the extended deadline for the filing of appellant's brief had passed. The
fact that the deadline for filing a Designation and Statement was never "mentioned in any
subsequent order," (Reply at 5), after the expiration of the fourteen (14)-day period provided in
Rule 8006 is of no moment, since counsel is presumably experienced and charged with knowledge
of the bankruptcy rules, including the requirements of Rules 8006 and 9006(b)(I), regarding
requests for extension of time. To suggest that the bankruptcy court has to sit on an appeal
indefinitely after the expiration of the time period for filing a Designation and Statement until a
recalcitrant appellant decides to comply with his duties under the Bankruptcy Rules, or take
affirmative steps to compel the appellant to comply with those duties, borders on the absurd and
would not only stall the prosecution of bankruptcy appeals, but also leave them entirely in the
control of the appellants, many of whom would benefit by extended delays. In any event, I could
not have overlooked this argument in the February 3, 20 I 4 order, since it was raised for the first
time in Mr. Stein's reply on the motion for reconsideration.
Since neither Mr. Slenn nor Mr. Stein have demonstrated that I overlooked or
misapprehended any points oflaw or fact in the February 3, 2014 Order, or that adherence to the
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February 3, 2014 order will result in manifest injustice, I adhere to my original determination. See,
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Sash v. Zenk, 439 F.3d 61, 62 (2d Cir. 2006) (denying petition for rehearing because the
petitioner "failed to show 'point[s] of law or fact that... the court ha[ d] overlooked or
mispprehended[.]" (alterations in original) (quoting Fed. R. App. P. 40(a)(2)).
II.
Conclusion
For the reasons stated above, appellant's motion seeking reconsideration of my February 3,
2014 order is granted but, upon reconsideration, I adhere to my original determination.
SO ORDERED.
s/ Sandra J. Feuerstein
SAND6:_ J. FEUERstEIN
United States District Judge
Dated: March II, 2014
Central Islip, New York
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