In re Hotel Syracuse, Inc.

• Decision Date: 27 April 1993
• Docket Number: Adv. No. 91-60166A (SDG),No. 90-02921,Civ. A. No. 93-CV-323.,90-02921
• Citation: 154 BR 13
• Parties: In re HOTEL SYRACUSE, INC., Debtor. HOTEL SYRACUSE, INC., Plaintiff-Respondent, v. CITY OF SYRACUSE INDUSTRIAL DEVELOPMENT AGENCY, and Syracuse Economic Development Corporation, Defendants-Appellants, and Manufacturers Hanover Trust Company/Central New York, Apple Bank for Savings, Defendants.
• Court: U.S. District Court — Northern District of New York

154 B.R. 13 (1993)

In re HOTEL SYRACUSE, INC., Debtor HOTEL SYRACUSE, INC., Plaintiff-Respondent, v. CITY OF SYRACUSE INDUSTRIAL DEVELOPMENT AGENCY, and Syracuse Economic Development Corporation, Defendants-Appellants and Manufacturers Hanover Trust Company/Central New York, Apple Bank for Savings, Defendants.

No. 90-02921, Adv. No. 91-60166A (SDG), Civ. A. No. 93-CV-323.

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

April 27, 1993.

Hiscock & Barclay, Syracuse, NY, for defendants-appellants City of Syracuse Indus. Development Agency and Syracuse Economic Development Corp.; Robert A. Barrer, of counsel.

Shaw, Licitra, Parente, Esernio & Schwartz, P.C., Garden City, NY, for plaintiff-respondent Hotel Syracuse, Inc.; Stuart I. Gordon, of counsel.

MEMORANDUM-DECISION and ORDER

McAVOY, Chief Judge.

I. BACKGROUND

This Chapter 11 case was commenced in the Southern District of New York by the filing of a voluntary petition on October 26, 1990. In November, 1990, the case was referred to Bankruptcy Judge Stephen J. Gerling pursuant to 28 U.S.C. § 157(a), after venue was transferred to the Northern District of New York.

On February 5, 1993, the United States Bankruptcy Court of the Northern District of New York (Gerling, J.) issued a Memorandum Decision, Findings of Fact, Conclusions of Law and order in the above-captioned matter ("Order"). In the subject motion, filed by Hotel Syracuse, Inc. ("Debtor") on July 30, 1992, and cross-motion on behalf of City of Syracuse Industrial Development Agency and Syracuse Economic Development Corporation (collectively, the "City"), all parties sought summary judgment on the issue of whether an agreement between the parties, dated May 2, 1981 and entitled Lease Agreement ("Lease"), constituted a "true lease" for purposes of § 365(d)(4) of the Bankruptcy Code. Judge Gerling granted summary judgment to the Debtor, denied the City's cross-motion for summary judgment, and declared that the Lease was not in fact a "true lease" under the Code. The instant motion concerns the timeliness of the City's efforts to appeal that decision of the Bankruptcy Court.

It is undisputed that the Order the City seeks to appeal was both signed by Judge Gerling, and entered by the Clerk of the Bankruptcy Court, on Friday, February 5, 1993. As such, and as both parties acknowledge in their papers, the final day on which the City could timely file its Notice of Appeal was Tuesday, February 16, 1993.¹ However, as advanced by the City's counsel, Hiscock & Barclay (Robert A. Barrer, Esq., of counsel), several unfortunate circumstances, including a family death and inclement weather conditions, prevented the timely filing of the Notice of Appeal with the Clerk of the Bankruptcy Court (Barrer Aff. ¶ 3, 4). Nevertheless, in an effort to comply with the 10-day filing deadline, counsel for the City transmitted a copy of their Notice of Appeal, via facsimile, to the Bankruptcy Court in Utica, New York late in the afternoon on February 16, 1993. One day later, on February 17, 1993, a "hard copy" of the Notice of Appeal was received by the Bankruptcy Court via overnight mail, and filed. It is relevant to note that the City did not request, either before or after the expiration of the time period to file its Notice of Appeal, an enlargement of the time within which to file pursuant to Bankruptcy Rule 8002(c). Bankr.Rule 8002(c), 11 U.S.C.A. (hereafter, "Rules").

Counsel for the City apparently believed that the submission by facsimile constituted timely filing, until receipt of the Bankruptcy Clerk's correspondence, dated March 10, 1993, indicating that the Notice of Appeal was being treated as untimely because it was not received by mail and filed until February 17, 1993. This motion quickly ensued, having been filed on March 12, 1993.

The City now seeks an order declaring that its facsimile transmission of its Notice of Appeal, and accompanying documents, constituted timely filing on February 16, 1993, or, in the alternative, an order granting the City leave to file the Notice of Appeal and accompanying papers with the Bankruptcy Court, nunc pro tunc.

For the reasons set forth herein, the City's motion is denied in its entirety.

II. DISCUSSION

A. Notice of Appeal Filing Requirements

Bankruptcy Rule 8001 requires that a notice of appeal be filed with the Clerk of the Bankruptcy Court within the time allowed by Bankruptcy Rule 8002. Rule 8002, in turn, is entitled "Time for Filing Notice of Appeal", and provides in pertinent part that the "notice of appeal shall be filed within 10 days of the date of entry of the judgment, order, or decree appealed from." Rule 8002(a) (emphasis added).² In the instant case, there is no dispute that the 10-day period for filing the City's Notice of Appeal began to run on February 5, 1993 and ended on February 16, 1993. See note 1, supra. Rather, the Court must address the propriety of facsimile filing and also determine, as the Debtor urges, whether this court has jurisdiction to grant the relief requested.

1. The Filing Deadline is Jurisdictional in Nature.

The 10-day period for filing a notice of appeal has been strictly construed, requiring strict compliance with its terms. In re Shewchun, 959 F.2d 236 (6th Cir. 1992); In re Parkway Inn, Ltd., 936 F.2d 579 (9th Cir.1991); In re Souza, 795 F.2d 855 (9th Cir.1986); In re Universal Minerals, Inc., 755 F.2d 309 (3d Cir.1985); In re Satellite Systems Corp., 73 B.R. 610 (S.D.N.Y.1987) (and cases cited therein); Twins Roller Corp. v. Roxy Roller Rink Joint Venture, 70 B.R. 308, 310 (S.D.N.Y. 1987) (and cases cited therein). More significantly, the 10-day deadline under Rule 8002(a) is jurisdictional in nature, so that a failure to timely file the notice of appeal deprives the district court of jurisdiction to review a bankruptcy court's order.³In re Corto, 1992 WL 279257, 1992 U.S.Dist. LEXIS 15296 (W.D.N.Y.1992); In re Tutino, 1991 WL 144199, 1991 U.S.Dist. LEXIS 10210 (N.D.N.Y.1991) (and cases cited therein); In re W.T. Grant Co., 425 F.Supp. 565, 567 (S.D.N.Y.1976), aff'd mem. sub. nom., 559 F.2d 1202, 1206 (2d Cir.1977). Indeed, in In re Tutino, then-Chief Judge McCurn stated:

The court recognizes that this Notice of Appeal was filed only one day late — on April 30, 1991 — but it is well settled that the 10 day limit is to be strictly construed, requiring strict compliance with its terms. Consequently, because the creditor did not comply with Rule 8002(a) and because he did not seek an extension of time in which to file an appeal under Rule 8002(c), the court cannot overlook this jurisdictional defect. The appeal must be dismissed.

1991 WL 144199, 2, 1991 U.S.Dist. LEXIS 10210, 7 (N.D.N.Y.1991) (emphasis added) (citations omitted).

Based on the foregoing, it is clear that this court may not simply disregard or forgive a party's failure to comply with Rule 8002(a). However, this conclusion only begs the questions which the court must now address — first, whether submission of papers to the Bankruptcy Court by facsimile constitutes timely filing; and second, whether Bankruptcy Rule 9006(a) extended the 10-day filing period due to inclement weather. Because the court answers both these questions in the negative, it therefore follows that the City's appeal was not timely filed and this court is without jurisdiction to pass upon the City's request for an extension to do so.⁴

2. Filing By Facsimile Is Not Permitted in the Northern District of New York.

The court firmly rejects the City's contention that facsimile transmissions constitute a valid method of filing in the Bankruptcy Court or District Court of the Northern District of New York.

General Order 23 became effective in the Northern District of New York on March 1, 1990. It provides, inter alia:

After numerous inquiries, the General Counsel of the

Administrative Office of the U.S. Courts issued the following statement: "We have consistently advised that filing by fax or computer is not authorized by the Federal rules. Although the Federal rules do not specifically preclude such filing, Federal Rules of Civil Procedure 5(e) and 11 would appear to require the filing of an original document with an original signature. We have been unable to find any case law, or any commentary, on this issue. In addition, we are advised by the Local Rules Project of the Committee on Rules of Practice and Procedure that they are not aware that any district court has promulgated local rules on this subject. Pending such developments, we think that the best interpretation of the Federal Rules is that facsimile filing is not authorized." Bankruptcy clerks were instructed in 1988 to not accept facsimile filing.

. . . . .

Materials transmitted to the clerk\'s office by facsimile will be received and dated but not docketed unless a clerk is ordered to do so by a federal judge. . . . The original document will be filed and docketed on the date it is received in the clerk\'s office.

This administrative policy cannot be construed as a statement that faxed documents received by the clerk\'s office will be reviewed by the court or will be considered as a timely filed document.

General Order 23, Local Rules (N.D.N.Y.), eff. March 1, 1990 (emphasis added).⁵

The import of General Order 23 is clear and unequivocal. Facsimile filing in the Northern District of New York has not heretofore been authorized. Because neither the Bankruptcy Rules nor any other controlling statutes, rules or case law provide otherwise, the City's attempt to rely on facsimile filing must fail.⁶ Also persuasive, though not controlling,⁷ is the fact that Rule 5 of the Federal Rules of Civil Procedure was amended shortly after General Order 23 was promulgated. The amendment, which became effective on December 1, 1991, added the following language to Rule 5:

Papers may be filed by facsimile transmission if permitted by the rules of the district court, provided that the rules are authorized by and consistent with

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