Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ales v. Stern

United States District Court, E.D. New York

March 11, 2014

ALBERT ALES, Appellant,
v.
RICHARD L. STERN, BRIDIE CHRISTOFORATOS, AIDA BUGEJA, and: WILLIAM CHRISTOFORATOS, Appellees.

ORDER

SANDRA J. FEUERSTEIN, District Judge.

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. Stern 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 alga, 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, 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 8001(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: (1) 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 Trustee's opposition.[2] 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 of filing 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 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 Corp., No. 13 Civ. 562, 2013 WL 5880695, at * 1 (S.D.N.Y. Oct. 29, 2013); see also In re Heath Global. Inc., No. 12 Civ. 8966, 2013 WL 6722773, at * 1 (S.D.N.Y. Oct. 9, 2013); In re Motors Liquidation Co., No. 09 Civ. 7794, 2010 WL 3565494, at * 1 (S.D.N.Y. Sept. 10, 2010). "While the standard for granting a motion under Rule 8015 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); see also In re Terrestar, 2013 WL 5880695, at * 1 ("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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.