Philip G Barry

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In re:
Case No. 1-08-47352-dem
PHILIP G. BARRY a/k/a BARRY
PUBLICATIONS, 	Chapter 7
Debtor.
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DECISION AND ORDER ON APPLICATION FOR STAY PENDING APPEAL
Appearances:
Alan Nisselson, Esq.
Chapter 7 Trustee
Windels Marx Lane & Mittendorf, LLP
Attorneys for Chapter 7 Trustee
156 West 56th Street
New York, New York 10019
Ms. Nancy Motola
Chair, Committee of Unsecured Creditors
1434 86th Street
Brooklyn, New York 11228
Diana G. Adams, Esq
United States Trustee
Office of the United States Trustee
Conrad B. Duberstein United States Courthouse
271 Cadman Plaza East, Room 4529
Brooklyn, New York 11201
By: 	Jacqueline A. Frome, Esq.
Trial Attorney
Philip G. Barry
Debtor
477 82nd Street
Brooklyn, NY 11209
Case 1-08-47352-nhl Doc 268 Filed 01/27/10 Entered 01/27/10 12:41:41

DENNIS E. MILTON
United States Bankruptcy Judge
On October 13, 2008, Philip G. Barry (the “debtor”) filed a voluntary petition for
relief under chapter 11 of the Bankruptcy Code. On January 28, 2009, the Court appointed Alan
Nisselson the case Trustee. On August 25, 2009, Nisselson filed an Application for an Order
converting the Chapter 11 case to a case under Chapter 7 of the Bankruptcy Code (the
“Application”). On November 6, 2009, the Committee of Unsecured Creditors through its
counsel filed an Objection to the Application. On November 9, 2009, Nisselson filed a reply in
opposition to the Objection and in further support of the Application. After an initial
adjournment, on December 15, 2009, the Court conducted a hearing and granted the Application.
On December 15, 2009, the Court entered an Order converting the Chapter 11 Case to one under
Chapter 7 of the Bankruptcy Code (the “Conversion Order”). On December 17, 2009, the
United States Trustee appointed Nisselson the chapter 7 case Trustee.
On December 28, 2009, Nancy Motola, who had served as the Chair of the
Official Committee of Unsecured Creditors, filed a Notice of Appeal from the Conversion Order.
On January 14, 2010, Motola filed an Application for a stay pending appeal of the Conversion
Order (the “Stay Application”). On January 19, 2010, Motola filed an Amended Motion, in
which she argued that the appeal had legitimate grounds and that in the absence of a stay, an
appeal could be rendered moot, causing irreparable and prejudicial consequences to the movant.
Motola did not file an affidavit or Memorandum of Law in support of the Motion.
On January 21, 2010, Nisselson filed an Opposition to the Stay Application.
Nisselson argued that the movant had failed to set forth the standard applicable for the Court’s
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review of the Stay Application, and that the record amply demonstrated that the appellant had
failed to show either a likelihood of success on the merits or irreparable injury to the movant
absent the issuance of a stay. On January 26, 2010, Motola filed a reply to the Trustee’s
opposition. On January 27, 2010, the Court heard argument on the Stay Application and for the
reasons set forth below, denies the Stay Application in its entirety.
DISCUSSION
The Movant Has Failed to Meet Her Burden of Proof to
Establish the Elements Necessary for a Stay Pending Appeal.
It is well established that the movant seeking an Order directing the issuance of a
stay pending appeal, a party must establish the following four elements:
(1) that she will likely prevail on the merits of the appeal;
(2) that she will suffer irreparable injury if the stay is denied;
(3) that other parties will not be substantially harmed by the stay; and
(4) that the public interest will be served by granting the stay.
Hirschfeld v. Board of Elections, 984 F.2d 35, 39 (2d Cir. 1993); In re Vincent Andrews
Management Corp., 414 B.R. 1, 4 (D. Conn. 2009)(citing In re World Trade Center Disaster Site
Litigation, 503 F.3d 167, 170 (2d Cir. 2007). This standard has been applied to bankruptcy
proceedings. In re Singer Co., N.V., 2000 WL 257138 (S.D.N.Y. 2000). The caselaw in this
district suggests that all four criteria must be satisfied for a stay to be issued, and emphasizes that
the single most important factor is likelihood of success on the merits or a serious question going
to the merits and a tipping of the equities in favor of the movant. See In re Holtmeyer, 229 B.R.
579, 582 (E.D.N.Y. 1999). The movant has failed to establish these elements. Even were the
Court to find that the movant would suffer irreparable harm from the property sales which were
allowed to go forward and that other parties would not be substantially harmed by issuance of
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the stay, the movant has failed to raise serious questions to establish a substantial possibility of
success on the merits of her appeal. The Stay Application contains conclusory allegations that
these standards are satisfied and fails to demonstrate that any one factor is present here. The
movant has clearly failed to meet her burden of proof to establish the existence of these factors
in her favor. The Stay Application must be denied.
CONCLUSION
For the reasons set forth above, the Court finds that the movant has failed to meet
her burden of proof to establish the criteria necessary for a stay pending appeal. The Court
specifically finds that the movant has failed to establish a likelihood of success on the merits,
and that consideration of either the equities or of the pubic interest favors the issuance of a stay
pending appeal in this case. The Stay Application is denied in all respects.
IT IS SO ORDERED.
Dated: Brooklyn, New York
January 27, 2010
S/ Dennis E. Milton
DENNIS E. MILTON
United States Bankruptcy Judge
To: 	Alan Nisselson, Esq.
Chapter 7 Trustee
Windels Marx Lane & Mittendorf, LLP
Attorneys for Chapter 7 Trustee
156 West 56th Street
New York, New York 10019
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Case 1-08-47352-nhl Doc 268 Filed 01/27/10 Entered 01/27/10 12:41:41

Ms. Nancy Motola
Chair, Committee of Unsecured Creditors
1434 86th Street
Brooklyn, New York 11228
Diana G. Adams, Esq
United States Trustee
Office of the United States Trustee
Conrad B. Duberstein United States Courthouse
271 Cadman Plaza East, Room 4529
Brooklyn, New York 11201
By: 	Jacqueline A. Frome, Esq.
Trial Attorney
Philip G. Barry
Debtor
477 82nd Street
Brooklyn, NY 11209
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Case 1-08-47352-nhl Doc 268 Filed 01/27/10 Entered 01/27/10 12:41:41