Parts Auth., Inc. v Trainor

[*1] Parts Auth., Inc. v Trainor 2008 NY Slip Op 50743(U) [19 Misc 3d 136(A)] Decided on April 3, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 3, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2007-45 Q C.

Parts Authority, Inc., Appellant,

against

Robert S. Trainor, Respondent.

Appeals from orders of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), entered, respectively, April 4, 2006 and June 14, 2006. The order entered April 4, 2006 denied a motion by plaintiff for an order reinstating a fining order, for an order of arrest and to recover expenses incurred, including legal fees. The order entered June 14, 2006, insofar as appealed from, upon granting plaintiff's motion to reargue, again denied the relief sought.

Appeal from order entered April 4, 2006 dismissed as said order has been superseded.

Order entered June 14, 2006, insofar as appealed from, affirmed without costs.

In supplementary proceedings commenced to enforce a default judgment, a fining order was issued on September 22, 2005 holding defendant Robert S. Trainor in contempt of court and fining him $250 plus $10 costs. The fining order was coercive in nature, and permitted defendant to purge his contempt by paying the fine and by testifying under oath in enforcement proceedings.

Defendant appeared in the enforcement proceedings, but prior to the date of a scheduled examination before trial, filed a petition for bankruptcy in the United States Bankruptcy Court for the Eastern District of New York. While the bankruptcy case was pending, plaintiff moved to, inter alia, reinstate the fining order. Civil Court held that, inasmuch as the fining order had never been vacated or otherwise nullified, it remained the order of the court, and plaintiff's proper remedy was to seek enforcement of the existing fining order, not its reinstatement. Prior to defendant's discharge in bankruptcy, plaintiff moved to reargue the motion to reinstate the fining [*2]order, and for other relief.

Under the federal bankruptcy laws, the filing of a voluntary petition for bankruptcy automatically stays state court proceedings, including civil contempt proceedings pending against the debtor (11 USC § 362 [a]; see In re Wiley, 315 BR 682, 687 [Bkrtcy. E.D. La., 2004]). The stay continues until the discharge in bankruptcy unless relief therefrom is granted sooner. Here, the stay was in effect at the time plaintiff moved to reargue the motion to reinstate the fining order, and the motion should have been denied on this basis. Accordingly, we affirm the Civil Court's order, insofar as appealed from, albeit on other grounds.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: April 03, 2008