Frumusa v. Schmitt

Filing 2

ORDER dismissing action. The Clerk of the Court is directed to close this action. Signed by Hon. Charles J. Siragusa on 10/14/09. (KAP)

U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK _ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ _ In re: W E B S T E R HOSPITALITY DEVELOPMENT, LLC, C a s e No. 09-CV-6482 CJS B K 2-09-21963 JCN _ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ _ ORDER

O n August 27, 2009, the United States Bankruptcy Court for the W e s te rn District of N e w York dismissed the instant bankruptcy case, Case Number 2-09-21963. Fourteen (14) d a ys later, on September 10, 2009, Lawrence Frumusa ("Appellant"), proceeding pro se, filed a Notice of Appeal (Bankruptcy Docket No. [#45]) in Bankruptcy Court. On September 23, 2 0 09 , Appellant filed the instant action. It is clear that under the Bankruptcy Rules, a notice of appeal must be filed within ten c a le n da r days of the date of entry of the order being appealed: U n d e r Rule 8002 of the Federal Rules of Bankruptcy Procedure, a "notice of a p pe a l shall be filed with the clerk within 10 days of the date of the entry of the ju d g m e n t, order, or decree appealed from." Rule 8002(a), Fed. R. Bankr.P. W h e n computing time under the Bankruptcy Rules, weekends and holidays are in c lu d ed unless the "the period of time prescribed or allowed is less than 8 d a ys ." Rule 9006(a), Fed. R. Bankr.P. In re Schapiro, No. 06 Civ. 2685(DLC), 2006 W L 2355000 at *1 (S.D.N.Y. Aug. 15, 2006). M o reo v e r, "[c]ompliance with Rule 8002 is `mandatory and jurisdictional.'" Id. at *2 (quoting In re Siemon, 421 F.3d 167, 169 (2d Cir.2005)). "[I]n the absence of a timely notice of appeal in the district court, the district court is without jurisdiction to consider the appeal, regardless o f whether the appellant can demonstrate `excusable neglect.'" In re Siemon, 421 F.3d at 169 (A f firm in g dismissal of pro se appellant's untimely appeal). 1

H e re , Appellant filed his notice of appeal fourteen days after entry of the order d is m is s in g the bankruptcy case, which was four days too late. Consequently, the Court lacks ju ris d ic tio n . Accordingly, it is hereby O R D E R E D , that this action is dismissed. The Clerk of the Court is directed to close th is action.

Dated:

R o c h e s ter, New York O c to b er 14, 2009 ENTER:

/s/ Charles J. Siragusa CHARLES J. SIRAGUSA U n ite d States District Judge

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