Santodonato v. Voelker

Full title: GIUSEPPE SANTODONATO, Petitioner(s) v. ROBERT VOELKER, Respondent(s)

Court: District Court of Nassau County, First District

Date published: Feb 13, 2009

2009 N.Y. Slip Op. 50221 (N.Y. Dist. Ct. 2009)

Opinion

SP 4569/07.

Decided February 13, 2009.

Respondent moves by order to show cause to stay his eviction. This Court previously issued the order, dated March 25, 2008, which denied Respondent's order to show cause to stay the eviction because:

Robert Voelker, Respondent/Tenant pro se, Welikson Rosen, P.C., Attorneys for Petitioner, New York.

SCOTT FAIRGRIEVE, J.

This Court does not accept movant's argument that his filing of a petition for bankruptcy in the United States Bankruptcy Court for the Eastern District of New York on January 4, 2008 entitles him to an automatic stay of eviction. Inasmuch as the judgment and warrant of eviction was validly entered prior to his application for bankruptcy, the automatic stay of eviction does not apply. (See 11 USC § 362(b)(22)). Further, this Court contacted the Bankruptcy Court and has obtained a copy of the Notice of Automatic Dismissal of Case Under Bankruptcy Code § 521 (i)(1) dated February 20, 2008 of movant's application for bankruptcy.

Eviction was not accomplished because Respondent filed for bankruptcy protection again. Respondent filed for Chapter 13 protection on January 4, 2008 which was dismissed on March 27, 2008. Respondent filed for a second time on April 28, 2008 which was dismissed on December 2, 2008. Respondent filed for a third time on January 22, 2009 for bankruptcy protection.

This Court agrees with Petitioner that there is no automatic stay to prevent eviction of Respondent pursuant to 11 U.S.C. Sec. 362. See In re Parker, 336 B.R. 678 (U.S. Bankruptcy Ct., S.D.NY 2006) wherein the court held:

Section 362(c)(4) applies where two or more cases were pending in the year prior to the filing of the instant case and provides that "the stay under [Section 362(a)] shall not go into effect upon the filing of the later case." 11 U.S.C. § 362(c)(4)(A)(i).

. . . .

As set forth above, because John Parker was a debtor in two other cases pending in the year prior to the filing of the instant case, Section 362(c)(4) applies so that as to John Parker the automatic stay did not go into effect upon the filing of this case.

Petitioner is authorized to evict Respondent forthwith and all stays are vacated. No further 72 hour notice is necessary. No further orders to show cause will be granted especially when Respondent owes at least $28,075.00 to Petitioner.

So Ordered.