Peryea, In re, 96-5041

• Decision Date: 17 January 1997
• Docket Number: No. 96-5041,96-5041
• Citation: 107 F.3d 3
• Parties: NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23. In re Michael N. PERYEA, Debtor. Michael N. PERYEA, Plaintiff-Appellant, v. TOWN OF PLATTSBURGH, Clinton County, Donald H. and Rose V. Duquette and Plattsburgh Housing Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 3

107 F.3d 3

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.

In re Michael N. PERYEA, Debtor Michael N. PERYEA, Plaintiff-Appellant, v. TOWN OF PLATTSBURGH, Clinton County, Donald H. and Rose V Duquette and Plattsburgh Housing Company Defendants-Appellees.

No. 96-5041.

United States Court of Appeals, Second Circuit.

Jan. 17, 1997.

APPEARING FOR PLAINTIFF-APPELLANT: Michael N. Peryea, Plattsburgh, New York, pro se.

APPEARING FOR DEFENDANTS-APPELLEES: Christopher LaCombe, Lewis & Rogers, Plattsburgh, New York, for Town of Plattsburgh, New York; Carl J. Madonna, Madonnna, Saxer, Anderson, & Wolinsky, Plattsburgh, New York, for Donald H and Rose V. Duquette; Mark Bezinque, Davidson, Fink, Cook, & Kelly, Rochester, New York, for Plattsburgh Housing Authority; Louis E. Wolfe, County Attorney's Office, Plattsburgh, New York, for Clinton County, New York.

Before WALKER, MCLAUGHLIN and CUDAHY, ^* Circuit Judges.

This cause came on to be heard on the transcript of record from the United States District Court for the Northern District of New York (Pooler, J.) and was argued by plaintiff-appellant and submitted by defendants-appellees.

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the order of the United States District Court for the Northern District of New York is AFFIRMED.

On January 18, 1995, plaintiff-appellant, Michael N. Peryea, filed a voluntary petition seeking relief under Chapter 11 of the Bankruptcy Code. Several months later, on May 12, 1995, Peryea acting pro se instituted adversary proceedings in Bankruptcy Court against defendants--the Town of Plattsburgh, New York; the Plattsburgh Housing Authority; Clinton County, New York; and Donald H. and Rose V. Duquette--alleging trespass, unlawful use of New York State Highway Law § 147 and Eminent Domain procedures, and the taking of private property in violation Article I, section 7 of the New York Constitution and the Fourteenth Amendment of the United States Constitution. Peryea later amended his complaint to include various other claims, including violations of civil rights law. Defendants answered the complaint and interposed various cross-claims; further, they moved for dismissal of the complaint, for abstention of the Bankruptcy Court, and in the alternative for summary judgment.

On January 23, 1996, the Bankruptcy Court dismissed Peryea's claims of violation of his civil and constitutional rights for lack of subject matter jurisdiction. Further, the Bankruptcy Court, in proposed findings of fact and conclusions of law, found that Peryea's claims based on trespass and continuing trespass should be dismissed with prejudice as time-barred and that the defendants' motions to dismiss the adversary proceeding and for summary judgment should be granted. On February 5, 1996, thirteen days after the entry of the Bankruptcy Court's order and proposed findings of fact and conclusions of law, Peryea filed a notice of appeal. On February 7, 1996, pursuant to Fed.R.Bankr.P. 9033, Peryea filed a one-sentence request for an extension of time in which to file a notice of appeal with respect to the Bankruptcy Court's action. However, on February 9, 1996, the Bankruptcy Court--construing the request for an extension as made pursuant to both Fed.R.Bankr.P. 9033(c) (governing extensions of time for filing objections to Bankruptcy Court's proposed findings of fact and ruling of law) and Fed.R.Bankr.P. 8002(c) (governing extensions of time for seeking review of Bankruptcy Court's judgments, orders, or decrees)--denied Peryea's request. Under either procedural rule, the court found that a request for an extension after the initial ten-day period of appeal, see Fed.R.Bankr.P. 8002(a), 9033(b), must at least make some showing of "excusable neglect." None having been made in the present case, the court denied Peryea's request without prejudice. At no subsequent time did Peryea proffer to the court reasons constituting excusable neglect.

On February 14, 1996, the United States District Court for the Northern District of New York (Con.G.Cholakis, Judge ) adopted the Bankruptcy Court's proposed findings of fact and conclusions of law, noting that no party filed specific written objections concerning the recommendations. On March 7, 1996, the United States District Court for the Northern District of New York (Rosemary S. Pooler, Judge )...