section 362 automatic stay in New York

2012“It has been generally held that ‘the balance of the equities lies with plaintiffs when one defendant has received an automatic stay pursuant to 11 USC § 362 (a) . . . and codefendants request a stay of the entire action’ ” (Rosenbaum v Dane & Murphy, 189 AD2d 760, 761 [1993], quoting Lottes v Slater, 114 AD2d 580, 581 [1985]; see Rapini v New Plan Excel Realty Trust, Inc., 8 AD3d 1013, 1014 [2004]).

1994Plaintiff has sued Edison Brothers on its guaranty, and it is settled law that Edison Brothers’ status as guarantor is not an unusual circumstance justifying the imposition of the automatic stay pursuant to section 362 (a) (1) (see, Rosenbaum v Dane & Murphy, 189 AD2d 760, 761 ; Milliken & Co. v Stewart, 182 AD2d 385, 386 ; Marine Bank v Woodworth, 158 AD2d 953, 954 ; see also, Credit Alliance Corp. v Williams, 851 F2d 119).

2019Corp. , 100 AD3d 868 , 869-870; Rosenbaum v Dane & Murphy , 189 AD2d 760, 761 ; see also [*2]Golden v Moscowitz , 194 AD2d 385, 385 ).

2014Corp., 100 AD3d 868 , 869-870 [2012]; Rosenbaum v Dane & Murphy, 189 AD2d 760, 761 [1993]; see also Golden v Moscowitz, 194 AD2d 385, 385 [1993]).

2021Stores , 205 AD2d 295, 297 [4th Dept 1994], citing, inter alia, Teachers Ins. & Annuity Assn. of Am. v Butler , 803 F2d 61, 65 [2d Cir 1986]; see e.g.

1995Stores, 205 AD2d 295, 297 ).

2019Bank v Rappaport , 20 AD3d 502, 503 ; Homeside Lending, Inc. v Watts , 16 AD3d 551, 552 ; Howell v Brozzetti , 240 AD2d 794 ; Koolik v Markowitz , 40 F3d 567, 568 [2d Cir]; In Re Berry Estates, Inc. , 812 F2d 67, 71 [2d Cir]; Teachers Ins. & Annuity Assn. of Am. v Butler , 803 F2d 61, 64 [2d Cir]).

2010As the automatic stay provision of section 362 (a) of the Bankruptcy Code only applies to proceedings “against” the debtor (see Koolik v Markowitz, 40 F3d 567 [2d Cir 1994]), the automatic stay does not preclude defendant from presenting a defense to the action (see In re Merrick, 175 BR 333 [BAP 9th Cir 1994]; Martin-Trigona v Champion Fed.

2012“It has been generally held that ‘the balance of the equities lies with plaintiffs when one defendant has received an automatic stay pursuant to 11 USC § 362 (a) . . . and codefendants request a stay of the entire action’ ” (Rosenbaum v Dane & Murphy, 189 AD2d 760, 761 [1993], quoting Lottes v Slater, 114 AD2d 580, 581 [1985]; see Rapini v New Plan Excel Realty Trust, Inc., 8 AD3d 1013, 1014 [2004]).

1993It has been generally held that "the balance of the equities lies with plaintiffs when one defendant has received an automatic stay pursuant to 11 USC § 362 (a) [the bankruptcy law] and codefendants request a stay of the entire action” (Lottes v Slater, 114 AD2d 580, 581 ; see also, Gold v Johns-Manville Sales Corp., 723 F2d 1068; Williford v Armstrong World Indus., 715 F2d 124).

2023The United States Court of Appeals for the Second Circuit has explained that 11 USC § 362 (a)(1) operates as a stay of two categories of actions and proceedings: (1) those "'against the debtor'" or (2) those "'to recover a claim against the debtor'" ( In re Fogarty , 39 F4th at 72, quoting 11 USC § 362 [a][1]; see In re Colonial Realty Co. , 980 F2d 125, 131 [2d Cir 1992]). "[T]he latter category—to recover a claim against the debtor—must encompass cases in which the debtor is not a defendant; it would otherwise be totally duplicative of the former category and pure surplusage" ( In re Fogarty

2023The United States Court of Appeals for the Second Circuit has explained that 11 USC § 362 (a)(1) operates as a stay of two categories of actions and proceedings: (1) those "'against the debtor'" or (2) those "'to recover a claim against the debtor'" ( In re Fogarty , 39 F4th at 72, quoting 11 USC § 362 [a][1]; see In re Colonial Realty Co. , 980 F2d 125, 131 [2d Cir 1992]). "[T]he latter category—to recover a claim against the debtor—must encompass cases in which the debtor is not a defendant; it would otherwise be totally duplicative of the former category and pure surplusage" ( In re Fogarty

2023Trust Co. v Lubonty , 208 AD3d at 147) [FN4] .

2023Trust Co. v Lubonty , 208 AD3d at 147; Mercury Capital Corp. v Shepherds Beach , 281 AD2d 604, 605 ).

2021Here, the automatic stay provisions of 11 USC § 362 do not apply to defendant, a non-debtor, and the record lacks evidence of any circumstances that would warrant extension of the stay to defendant ( see Merrill Lynch, Pierce, Fenner & Smith, Inc. v Oxford Venture Partners, LLC , 13 AD3d 89, 89 [1st Dept 2004]; Murnane Assoc. , 217 AD2d at 1003).

2021Here, the automatic stay provisions of 11 USC § 362 do not apply to defendant, a non-debtor, and the record lacks evidence of any circumstances that would warrant extension of the stay to defendant ( see Merrill Lynch, Pierce, Fenner & Smith, Inc. v Oxford Venture Partners, LLC , 13 AD3d 89, 89 [1st Dept 2004]; Murnane Assoc. , 217 AD2d at 1003).

2012“It has been generally held that ‘the balance of the equities lies with plaintiffs when one defendant has received an automatic stay pursuant to 11 USC § 362 (a) . . . and codefendants request a stay of the entire action’ ” (Rosenbaum v Dane & Murphy, 189 AD2d 760, 761 [1993], quoting Lottes v Slater, 114 AD2d 580, 581 [1985]; see Rapini v New Plan Excel Realty Trust, Inc., 8 AD3d 1013, 1014 [2004]).

2012Here, as the prejudice to the plaintiff in being required to await the conclusion of the bankruptcy proceeding before obtaining any remedy outweighs any potential inconvenience to the defendants, the Supreme Court improvidently exercised its discretion in denying the plaintiffs motion pursuant to CPLR 603 to sever the causes of action asserted against Wayne from the causes of action asserted against the hospital (see Weber v Baccarat, Inc., 70 AD3d 487, 488 [2010]; Kharmah v Metropolitan Chiropractic Ctr., 288 AD2d 94 [2001]; Golden v Moscowitz, 194 AD2d 385, 386 [1993]; Rosenbaum v Dane & Mur

2009Since the February 8, 2008 commitment order was entered to uphold the dignity of the court, not collect on a judgment, the automatic stay provisions of 11 USC § 362 do not apply (see In re Altchek, 124 BR 944, 959 [SD NY 1991]).

2006A stay pursuant to section 362 “is automatic and is effective nationwide without notice” (2 Collier, Bankruptcy Practice Guide ¶ 38.02 [1], at 38-8; see In re Bresler, 119 BR 400, 402 [ED NY 1990]; In re Young, 14 BR 809, 811 [ND Ill 1981] ; Haig, Commercial Litigation in New York State Courts § 49.15 [4 West’s NY Prac Series 2d ed]).