Long Island Pine Barrens Society Inc v. Sandy Hills, LLC

Filing 16

MEMORANDUM & ORDER denying 3 Motion to Dismiss; denying 13 Motion to Strike; denying 14 Motion for Leave to File; denying 15 Motion to Strike; For the foregoing reasons, Sandy Hills' motion to dismiss (Docket Entry 3) is DENIED A S MOOT. Sandy Hills' motion to strike Pine Barrens' surreply (Docket Entry 13), Pine Barrens' motion for leave to file a surreply (Docket Entry 14), and Sandy Hills' motion to strike Pine Barrens' motion for leave to file a s urreply (Docket Entry 15) are consequently also DENIED AS MOOT. Pursuant to the Court's Electronic Order dated August 20, 2014, Sandy Hills shall file its appellate brief within fourteen (14) days of the date of this Memorandum and Order. E.D. Bankruptcy Case No. 8-12-74482(AST). So Ordered by Judge Joanna Seybert on 3/18/2015. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
LONG ISLAND PINE BARRENS
SOCIETY, INC.,
Appellant,
-against-

E.D. Bankr. Case
No. 8-12-74482(AST)
MEMORANDUM & ORDER
14-CV-4678(JS)

SANDY HILLS, LLC

Appellees.
-------------------------------------X
APPEARANCES
For Appellant:
Regina Seltzer, Esq.
Long Island Pine Barrens Society
547 East Main Street
Riverhead, NY 11901
For Appellee:

Stephen P. Gelfand, Esq.
Law Office of Stephen P. Gelfand, Esq.
548 West Jericho Turnpike
Smithtown, NY 11787

SEYBERT, District Judge:
This action is an appeal of an order entered in the
Chapter 11 bankruptcy proceeding of debtor and appellee herein,
Sandy Hills, LLC (“Appellee” or “Sandy Hills”).

Appellant Long

Island Pine Barrens Society, Inc. (“Appellant” or “Pine Barrens”)
appeals the May 22, 2014 Order of the United States Bankruptcy
Court for the Eastern District of New York (the “Bankruptcy
Court”), in which the Bankruptcy Court found that Pine Barrens
violated the automatic bankruptcy stay.

Sandy Hills moved to

dismiss this appeal, arguing that the May 22, 2014 Order was nonfinal and interlocutory and thus not appealable by right.

(Docket

Entry 3.)

For the following reasons, Sandy Hills’ motion to

dismiss is DENIED AS MOOT.
DISCUSSION
In the May 22, 2014 Order, the Bankruptcy Court found
that Pine Barrens and its counsel violated the automatic bankruptcy
stay when it pursued an appeal of a state court proceeding that
Pine Barrens commenced prior to the commencement of Sandy Hills’
bankruptcy.

(See generally Gelfand Affirm., Docket Entry 3, at 3-

5, Ex. B at 12-331.)

The Bankruptcy Court sanctioned Pine Barrens

and its counsel, jointly and severally, in an amount of reasonable
attorneys’ fees to be set by the Bankruptcy Court at a later date.
(Gelfand Affirm. Ex. B at 32.)

On August 6, 2014, Pine Barrens

filed this appeal before the Bankruptcy Court could determine the
final amount of attorneys’ fees to be awarded.
Sandy Hills argues that the May 22, 2014 Order is not a
final, appealable order, because the Bankruptcy Court left open
the

issue

of

the

amount

of

attorneys’

fees

to

be

awarded.

(Appellee’s Br., Docket Entry 3-1, at 3-5.) Sandy Hills is correct
that under 28 U.S.C. § 158(a)(1), a district court has jurisdiction
to

hear

appeals

only

from

“final

judgments,

orders,

and

decrees . . . and, with leave of the court, from interlocutory
orders and decrees, of bankruptcy judges.”

28 U.S.C. § 158

The page numbers of exhibits referenced herein refer to the
page numbers generated by the Electronic Case Filing system.
1

2

(emphasis added).

Sandy Hills is also correct that the May 22,

2014 Order was not final for purposes of this Court’s appellate
jurisdiction since it did not assess the amount of attorneys’ fees
to be awarded.
(2d

Cir.

See In re Prudential Lines, Inc., 59 F.3d 327, 331

1995)

(“[F]or

a

bankruptcy

court

order

to

be

final . . . the order need not resolve all of the issues raised by
the bankruptcy; but it must completely resolve all of the issues
pertaining to a discrete claim, including issues as to the proper
relief. (citation omitted) (emphasis omitted)); In re Atlas, 210
F.3d 1305, 1308 (11th Cir. 2000) (“[I]n order to avoid piecemeal
litigation, a bankruptcy court’s order is not final for purposes
of

appellate

liability

for

jurisdiction
violation

where
of

the

the

bankruptcy

automatic

stay,

court

finds

but

defers

assessment of damages.”).
However, after Sandy Hills filed its motion to dismiss,
the Bankruptcy Court entered an order setting the amount of
attorneys’ fees to be awarded at $6,496.00.

(See Docket Entry 234

in In re Sandy Hills, LLC, No. 8-12-74482 (Bankr. E.D.N.Y. Nov. 5,
2014).

Thus, although Pine Barrens’ appeal was a premature appeal

of an interlocutory order, the May 22, 2014 Order is now final and
the Court will hear its appeal.2

See In re Heghmann, 316 B.R. 395,

As far as the Court can tell, Pine Barrens has not filed a
notice of appeal challenging the Bankruptcy Court’s November 5,
2014 Order setting the amount of attorneys’ fees. Accordingly,
2

3

400 (B.A.P. 1st Cir. 2004) (“Generally, orders finding violations
of the automatic stay and imposing sanctions are final appealable
orders.”); see Zeoli v. RIHT Mortg. Corp., 148 B.R. 698 (D.N.H.
1993) (considering appeal of order finding a violation of the
automatic bankruptcy stay and imposing attorneys’ fees); see also
In re Deak & Co., 65 B.R. 410, 411 (S.D.N.Y. 1986) (“Congress
manifestly intended to treat final denial of relief from the
automatic stay as a final order.”).

Accordingly, Sandy Hills’

motion to dismiss is DENIED AS MOOT.

[THIS PORTION OF THIS PAGE INTENTIONALLY LEFT BLANK]

this appeal is limited to the issue of whether Pine Barrens
violated the automatic bankruptcy stay.
4

CONCLUSION
For

the

foregoing

reasons,

Sandy

dismiss (Docket Entry 3) is DENIED AS MOOT.

Hills’

motion

to

Sandy Hills’ motion

to strike Pine Barrens’ surreply (Docket Entry 13), Pine Barrens’
motion for leave to file a surreply (Docket Entry 14), and Sandy
Hills’ motion to strike Pine Barrens’ motion for leave to file a
surreply (Docket Entry 15) are consequently also DENIED AS MOOT.
Pursuant to the Court’s Electronic Order dated August 20, 2014,
Sandy Hills shall file its appellate brief within fourteen (14)
days of the date of this Memorandum and Order.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
18 , 2015
Central Islip, New York

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