Castaldo v. Bank of New York, (2nd Cir. 2009)
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07-1840-bk
Castaldo v. Bank of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
"(SUMMARY ORDER)." UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH
IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV), THE PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A
COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED.
IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE
CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN
WHICH THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Daniel Patrick Moynihan United States
Courthouse, 500 Pearl Street, in the City of New York, on the
24th day of March, two thousand nine.
PRESENT:
HON. ROBERT D. SACK,
HON. BARRINGTON D. PARKER,
Circuit Judges,
HON. DENISE COTE, District Judge.* IN RE: RICHARD J. CASTALDO, JR., Debtor, RICHARD J. CASTALDO, JR., Debtor-Appellant, -v.- 07-1840-bk THE BANK OF NEW YORK as Trustee, Creditor-Appellee, JEFFREY L. SAPIR, Chapter 13 Trustee, Appellee. Appearing for Debtor-Appellant: Richard J. Castaldo, Jr., pro se, Middletown, NY.
Appearing for Creditor-Appellee: Lisa Milas, Rosicki, Rosicki & Associates, Plainview, NY.
Appeal from a judgment of the United States District Court for the Southern District of New York (Charles L. Brieant, Judge).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the district court judgment is AFFIRMED.
In a judgment entered on April 2, 2007, the district court dismissed the debtor-appellant's appeal from a dismissal order entered on December 21, 2006, by the United States Bankruptcy Court for the Southern District of New York (Cecelia G. Morris, Bankruptcy Judge). The debtor-appellant also appealed a December 7, 2006, order denying his motion to renew or reargue his objections to a proof of claim filed by creditor-appellee The Bank of New York. That portion of the appeal was disposed of by this court in an earlier order. In re Castaldo, 2008 WL 4222520 (2d Cir. Sept. 11, 2008)(mistakenly referring to the December 7, 2006, order as having been decided on December 15, 2006). We assume the parties' familiarity with the underlying facts, procedural history, and the issues on this appeal.
The district court upheld the bankruptcy court's dismissal of the debtor-appellant's action as a result of his failure to follow a specific direction of that court to file an amended Chapter 13 reorganization plan. As does a district court, "we review the Bankruptcy Court's findings of fact for clear error [and] its conclusions of law de novo." In re Bayshore Wire Prods. Corp., 209 F.3d 100, 103 (2d Cir. 2000).
Our review of the record reveals no erroneous fact-finding on the part of the bankruptcy court. The only question of fact at issue is whether the debtor filed an amended plan in response to the bankruptcy court's order to do so. The record reveals he did not. It also reveals that he was notified that his petition would be dismissed if he did not file such a plan. See In re Castaldo, 2006 WL 3531459 at *8 (Bkrtcy. S.D.N.Y. Dec. 7, 2006).
The bankruptcy court's dismissal was not an abuse of discretion.
The debtor's failure to comply with the bankruptcy court's order also may be viewed as a failure to prosecute. Like a dismissal on procedural grounds, we review a dismissal for failure to prosecute for abuse of discretion. See In re Tampa Chain Co., Inc., 835 F.2d 54, 55 (2d Cir. 1987)(per curiam)(reviewing for abuse of discretion a district court's dismissal of a bankruptcy appeal for failure to prosecute). A dismissal is not an abuse of discretion if it occurs after a party is asked to explain the failure to prosecute and fails to respond to the court's order. See id. at 56. As in Tampa Chain, the dismissal in this case was not an abuse of discretion because in response to the court's order to file an amended plan, the debtor, instead, reiterated arguments on which the bankruptcy court already had ruled.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By: SAO-ED
* The Honorable Denise Cote, of the United States District Court for the Southern District of New York, sitting by designation.
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