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Moran v. Sasso

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


July 2, 2009

PATRICK MORAN, AS PRESIDENT OF THE EMPIRE STATE REGIONAL COUNCIL OF CARPENTERS AND JOHN FUCHS, PATRICK MORIN, ANTHONY MACAGNONE, MICHAEL CONROY, DAVID HAINES, GEOFFREY JAMES, JAMES MALCOLM, WILLIAM MACCHIONE, ALAN EHL, WILLIAM WEITZMAN, KEVIN HICKS, JOSEPH OLIVIERI, DALE STUHLMILLLER, ARTHUR GODSELL, ROBERT CARLINO, PAUL J. O'BRIEN, JR., JOSEPH GANIRO, ROSS PEPE, RICHARD O'BEIRNE, JAMES LOGAN, ANTHONY CAROPRESSO, ANTONIO MARTINS, TODD HELFRICH AND FRANK WIRT AS TRUSTEES OF THE EMPIRE STATE CARPENTERS WELFARE PENSION, VACATION, ANNUITY, SCHOLARSHIP, APPRENTICE-TRAINING, LABOR-MANAGEMENT COOPERATION AND CHARITABLE TRUST FUNDS, PLAINTIFFS,
v.
FRANK SASSO, ANDREA SASSO, ROSINA BUILDERS & GENERAL CONTRACTING AND SRC CONSTRUCTION CORP., DEFENDANTS

The opinion of the court was delivered by: Hurley, Senior District Judge

By Order dated April 30, 2009, the Court referred Plaintiffs' motion for attorneys' fees and costs to Magistrate Judge E. Thomas Boyle, pursuant to 28 U.S.C. § 636(b). On June 17, 2009, Judge Boyle issued a Report and Recommendation that Plaintiffs be awarded attorneys' fees and costs in the amount of $53,160.56 but only as against defendants Frank Sasso and Rosina Builders & General Contracting in view of the Chapter 13 Bankruptcy filing of defendant Andrea Sasso. (See In re Andrea D. Simmons, f/k/a Andrea E. Sasso, 09-36312 (Bankr. S.D.N.Y.). More than ten days have elapsed since service of the Report and Recommendation, and the parties have not filed any objections to it.

Pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72, this Court has reviewed the Report and Recommendation for clear error, and now concurs in both its reasoning and its result except to the extend it recommends an award against Defendant Rosina Builders & Contractors. According to the complaint, Rosina Builders & Contractors is a sole proprietorship operated by Frank Sasso and Andrea Sasso. Upon review of the bankruptcy petition filed by Defendant Andrea Sasso, it appears she filed her petition "Andrea E. Simmons f/k/a/ Andrea E. Sasso d/b/a Rosina Builders" and therefore the bankruptcy stay applies to Defendant Rosina Builders & General Contracting. See Bankr. Code § 1304 (captioned "debtor engaged in business" and permitting a debtor to operate his business unless the court orders otherwise and subject to limitations prescribed by the court and the trustee). See generally Queenie, Ltd. v. Nygard International, 321 F.3d 282, 287-88 (2d Cir. 2003) In re McCormick, 381 B.R. 594, (S.D.N.Y. 2008). Accordingly, this Court adopts the June 17, 2009 Report and Recommendation of Judge Boyle to the extent it recommends that Plaintiffs recover attorneys' fees and costs from Defendant Frank Sasso in the amount of $53,160.56 plus post-judgment interest from September 13, 2007 until the award is paid.

SO ORDERED.

Dated: Central Islip, New York July 2, 2009

Denis R. Hurley Senior District Judge

20090702

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