Empire Erectors v Unlimited Locations LLC

Empire Erectors v Unlimited Locations LLC 2013 NY Slip Op 00025 Decided on January 3, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 3, 2013
Mazzarelli, J.P., Moskowitz, DeGrasse, Manzanet-Daniels, Clark, JJ.
8920 310289/10

[*1]Empire Erectors and Electrical Company, Inc., Plaintiff-Appellant,

v

Unlimited Locations LLC, et al., Defendants-Respondents.




Lopresto & Barbieri, P.C., Astoria (Guy Barbieri of counsel),
for appellant.
Angiuli & Gentile, LLP, Staten Island (Alan Karmazin of
counsel), for respondents.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered December 23, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to compel the depositions of defendants Justin Sallusto and Joseph Indelicato, unanimously reversed, on the law, with costs, the motion granted, and the matter remanded to Supreme Court for further proceedings.

Sallusto and Indelicato are being sued as guarantors of an agreement between plaintiff and defendant Unlimited Locations LLC. The court erred in denying plaintiff's motion on the basis of the automatic stay triggered by the bankruptcy petition filed by Unlimited only (see 11 USC § 362[a]). The automatic bankruptcy stay is generally not extended to non-debtor guarantors (see Milliken & Co. v Stewart, 182 AD2d 385, 386 [1st Dept 1992], citing Credit Alliance Corp. v Williams, 851 F2d 119 [4th Cir 1988]). The automatic stay normally applies to non-debtors only when a claim against a non-debtor will have "an immediate adverse economic consequence for the debtor's estate" (Queenie, Ltd. v Nygard Intl., 321 F3d 282, 287 [2d Cir 2003]). Sallusto and Indelicato have not made a showing that the continuation of this action against them would have such an effect on Unlimited's estate.

While the applicability of § 362(a) is limited, 11 USC § 105(a) vests bankruptcy courts with broad powers to "fashion such orders as are necessary to further the purposes of the substantive provisions of the Bankruptcy Code" (United States v Sutton, 786 F2d 1305, 1307 [5th Cir 1986]). Defendants assert that further litigation here would hamper Sallusto's efforts to assist in Unlimited's reorganization. On this score, we note that injunctions under § 105(a) have been granted by bankruptcy courts in circumstances where "the creditor's action would prevent the non-debtor from contributing funds to the reorganization, or would consume time and energy of the non-debtor that would otherwise be devoted to a reorganization
effort" (see e.g. In re United Health Care Org., 210 BR 228, 232 [SD NY 1997], appeal dismissed 147 F3d 179 [2d Cir 1998]). Accordingly, any relief should be sought in bankruptcy court.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [*2]

ENTERED: JANUARY 3, 2013

CLERK