Searching over 5,500,000 cases.

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.

Law Firm of Frank J. Bayger, PC v. Ring

United States District Court, W.D. New York

June 10, 2014

JOHN H. RING, III, Appellee.


WILLIAM M. SKRETNY, Chief District Judge.


On July 24, 2013, Bankruptcy Judge Michael J. Kaplan denied the request of an attorney for the Law Firm of Frank J. Bayger, PC, the debtor and appellant in this action, for an adjournment of a final hearing. That decision begat three separate but nearly identical appeals. The other two appeals appear to arise out of Judge Kaplan's ultimate order approving the final report and a later ruling denying an application for a temporary restraining order (TRO), which would have stayed the disbursement of funds. But in any event, aside from minor variations, Appellant's briefs in each case are carbon copies of each other. Those appeals are therefore consolidated for the purposes of this decision. For the following reasons, each appeal is dismissed.


The bankruptcy petition commencing the underlying case was filed in 2002. After 11 years of litigation, the bankruptcy court received the trustee's final report and, on June 24, 2013, set a hearing for July 24, 2013. According to John Bartolomei, he was retained by the Law Firm of Frank Bayger, PC "only five days prior to this scheduled hearing date." (Appellant's Br. at 4; Case No. 13-CV-997)). Despite this, Bayger's firm had been - and continued to be - represented by other attorneys, who were present at the final hearing and were unaware that Bayger had made arrangements with another attorney.

Nonetheless, Bartolomei contacted John Ring III, the trustee, and he called the bankruptcy court the day before the hearing; Bartolomei wanted to adjourn the hearing. But he was apparently told that because the court would have no way of notifying all the interested parties, the request to adjourn the hearing would have to be made at the hearing itself. So Bartolomei appeared at the hearing and requested the adjournment on the grounds that he needed time to review, and possibly have an accountant review, the trustee's final report. Judge Kaplan denied the request. He noted that all parties were on notice of the hearing for 30 days; that July 24, 2013 the day of the hearing - was the "very last day of the Court's participation in this case;" that "[t]his is the culmination of 11 years of efforts by the Court and numerous others"; and that "there are people waiting for their money." (Final Hr'g Tr., 2:13-19, 12:1-3.) He denied the motion without equivocation: "That's my ruling, " he declared. "Sit down, or I'll have you removed from the courtroom." (Id., 12:15-16, 18-19.)

In an effort to stay the distribution of funds, the Bayger firm then moved the bankruptcy court for a temporary restraining order. The firm relied on the same grounds asserted in the adjournment request: Bartolomei needed time to review the "sizeable file." (TRO motion, ΒΆ 6; Docket No. 1-8 in Case No. 13-CV-997.) Judge Kaplan denied that motion too.


A. Standard of review

Under its appellate jurisdiction, this Court conducts a de novo review of the law. In re Porges , 44 F.3d 159, 162 (2d Cir. 1995); Teufel v. Schlant, No. 02-CV-81S, 2002 WL 33008689, at *4 (W.D.N.Y. Sept. 25, 2002). But decisions on injunctions and whether to grant a continuance are reviewed for abuse of discretion. See Morris v. Slappy , 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) ("[B]road discretion must be granted trial courts on matters of continuances."); Wisdom Import Sales Co., L.L.C. v. Labatt Brewing Co., Ltd. , 339 F.3d 101, 108 (2d Cir. 2003) (citation omitted); Wachovia Bank of Georgia, N.A. v. Apex Tech of Georgia, Inc. , 144 B.R. 649, 652 (S.D.N.Y. 1992) ("Whether a request for a continuance should be granted is a question within the province of the sound discretion of trial courts, including the Bankruptcy Court.").

B. No abuse of discretion

While a decision denying a continuance should only be overturned upon a showing of an abuse of discretion, reviewing courts must be " particularly solicitous of a district court's ruling on a motion to adjourn the scheduled start of a trial proceeding." Sequa Corp. v. GBJ Corp. , 156 F.3d 136, 148 (2d Cir. 1998) (emphasis added). "Such a ruling, " the court went on, "will not be disturbed unless clear abuse is shown, " meaning that "the denial of the adjournment was arbitrary, and that it substantially impaired the presentation of his case." Id . Both parties take the position that this standard applies to Judge Kaplan's ruling in this case.

The Bayger firm argues that Judge Kaplan's decision meets this high standard and that he clearly abused his discretion in denying the continuance motion. This Court cannot agree.

Frank Bayger, a former judge, and his firm had been represented by attorneys throughout most of the protracted bankruptcy proceedings. There is no indication that those attorneys were anything but competent. But then, at the figurative eleventh hour and in the actual eleventh year, Bayger decided to change attorneys without notifying his former attorneys. This change, ...

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.