In re 48th Street Steakhouse, Inc.

• Decision Date: 29 January 1985
• Docket Number: Adv. No. 83-5915A.,Bankruptcy No. 83 B 11070 (EJR),Index No. 84 Civ. 1241 (LFM) (Bankruptcy Appeal)
• Citation: 46 BR 227
• Parties: In re 48TH STREET STEAKHOUSE, INC., Debtor. 48TH STREET STEAKHOUSE, INC., Plaintiff-Respondent, v. ROCKEFELLER GROUP, INC. and Rockefeller Center Properties, Defendants-Appellants, and I.S.H. Liquidating Corp. and Dornbush, Mensch & Mandelstam, Defendants-Respondents.
• Court: U.S. District Court — Southern District of New York

46 B.R. 227 (1985)

In re 48TH STREET STEAKHOUSE, INC., Debtor 48TH STREET STEAKHOUSE, INC., Plaintiff-Respondent, v. ROCKEFELLER GROUP, INC. and Rockefeller Center Properties, Defendants-Appellants and I.S.H. Liquidating Corp. and Dornbush, Mensch & Mandelstam, Defendants-Respondents.

Index No. 84 Civ. 1241 (LFM) (Bankruptcy Appeal), Bankruptcy No. 83 B 11070 (EJR), Adv. No. 83-5915A.

United States District Court, S.D. New York.

January 29, 1985.

William T. Livingston, III, New York City, for Rockefeller Group, Inc. and Rockefeller Center Properties.

Angel & Frankel, P.C. by Sanford P. Rosen, New York City, for 48th Street Steakhouse, Inc.

MEMORANDUM and ORDER

MacMAHON, District Judge.

Defendants Rockefeller Group, Inc. ("Rockefeller Group") and Rockefeller Center Properties, pursuant to 28 U.S.C. § 1334(b), seek leave to appeal a January 3, 1984 order of the bankruptcy court, which denied their motion to vacate a September 1, 1983 order enjoining defendants from interfering with or terminating any interest that plaintiff, 48th Street Steakhouse, Inc. had in a lease. Defendants also move to supplement the appellate record with the transcript of proceedings held October 11, 1983. Plaintiff moves to dismiss defendants' appeal.

In December 1975, plaintiff entered into a lease with defendant Rockefeller Group, as landlord, to rent the restaurant at 10 Rockefeller Plaza, New York City. As collateral for loans, plaintiff assigned the lease to co-defendant, I.S.H. Liquidating Corp. ("I.S.H."). A reassignment of I.S.H.'s interest in the lease to plaintiff is being held in escrow until plaintiff repays the loans.

Plaintiff filed for reorganization under Chapter 11 of the Bankruptcy Code on July 22, 1983. Defendants learned of the filing in August and on August 29 sent I.S.H. a three-day notice of default for non-payment of rent.

On September 1, when I.S.H. failed to cure the default, defendants delivered a notice of lease termination. That afternoon, plaintiff applied for a show cause order authorizing plaintiff to assume I.S.H.'s lease, holding defendants in contempt for violating provisions of the automatic stay imposed by 11 U.S.C. § 362, and declaring that plaintiff might make any and all payments due under the lease. After receiving telephonic notice, defendants appeared at the hearing in opposition to the application. A further hearing to determine the merits of the application was scheduled for September 21. However, the order signed on September 1 enjoined defendants from interfering with and/or terminating any right, title and interest that plaintiff enjoyed in the lease, pending a determination of plaintiff's application. After two adjournments, on November 3, defendants sought an order vacating the injunction contained in the September order and the automatic stay. After several hearings, the bankruptcy court entered an order on January 3, 1984 denying the motion. On January 12, defendants filed a notice of appeal of the January order. Plaintiff's September 1 application has yet to be determined.

DISCUSSION

Defendants argue initially that the September 1 order is a temporary restraining order which has long since expired pursuant to Fed.R.Civ.P. 65(b). In the alternative, they request leave to appeal the order. Plaintiff, however, asserts that the order is a preliminary injunction, is still in effect, and is a final, non-appealable order. It also claims that defendants really seek declaratory relief because they want this court to declare that the September order has expired, which this court is not empowered to grant under Bankruptcy Rule 8013.

Pursuant to Fed.R.Civ.P. 65, a temporary restraining order is issued ex parte and expires in ten days, unless specifically extended by the court for another ten days. A preliminary injunction, however, requires notice and a hearing. Austin v. Altman, 332 F.2d 273 (2d Cir.1964). Although the time may have been short, defendants did receive several hours of notice prior to the hearing and were present to oppose the application. The injunction was to last until a determination was made on plaintiff's application. That is a substantially longer period of time than is contemplated by a temporary restraining order. Since the September 1 order was issued on notice, after a hearing and for an indefinite duration, we find that the order was a preliminary injunction.

Plaintiff asserts that the order is final and nonappealable...