In Re: Nestor
- Rearden
- 1:24-cv-06246
- U.S. District Court · Southern District of New York
- 5
In Re: Peggy Nestor, Judge Rearden dismissed Marianne Nestor’s bankruptcy appeal without prejudice because it was filed late and the court lacked jurisdiction.
Marianne Nestor’s appeal was dismissed without prejudice because the district court found that the appeal was untimely and that it lacked subject-matter jurisdiction. Albert Togut’s request for dismissal with prejudice was denied.
What happened
In Re: Peggy Nestor involved Marianne Nestor’s appeal of a Bankruptcy Court order concerning Albert Togut, the trustee in her sister Peggy Nestor’s Chapter 11 bankruptcy case. Marianne Nestor represented herself.
The appeal challenged a July 1, 2024 order denying a request to remove Togut. The district court found that Marianne Nestor did not file her appeal within the required 14-day period, so it lacked authority to consider the appeal. Albert Togut objected to dismissal without prejudice and asked the court to dismiss with prejudice instead.
The court overruled Togut’s objection, adopted the magistrate judge’s recommendation in its entirety, and dismissed Marianne Nestor’s appeal without prejudice. Judge Jennifer H. Rearden also directed the clerk to close the case and mail the order to Marianne Nestor.
The detailed version
- In Re: Nestor · No. 1:24-cv-06246
- Rearden
- July 25, 2025
Background
Peggy Nestor filed for Chapter 11 bankruptcy in the Southern District of New York Bankruptcy Court on April 25, 2023. Marianne Nestor, Peggy Nestor’s sister, became involved in those proceedings through co-ownership of a property with Peggy Nestor. The appeal concerned a July 1, 2024 Bankruptcy Court decision by Judge Michael E. Wiles denying a motion to remove Albert Togut as the Chapter 11 trustee.
Marianne Nestor appealed to the district court. The appeal was assigned to Judge Rearden, who referred it to Magistrate Judge Sarah L. Cave for general pretrial matters and a report and recommendation on dispositive motions.
Jurisdiction and Report and Recommendation
Judge Cave ordered Marianne Nestor to show why the appeal should not be dismissed for lack of subject-matter jurisdiction. Federal Rule of Bankruptcy Procedure 8002(a) requires a bankruptcy appeal notice to be filed within 14 days after entry of the order being appealed. Judge Cave concluded that Marianne Nestor filed her notice after that deadline and recommended dismissing the appeal without prejudice.
Albert Togut objected only to the recommended disposition. He argued that the appeal should be dismissed with prejudice because Marianne Nestor and the debtor had filed other allegedly untimely appeals, which Togut said interfered with administration of the bankruptcy estate, imposed costs, and served no useful purpose. Togut also argued that dismissal without prejudice could allow the time-barred appeals to be refiled.
Ruling
Judge Rearden reviewed the objection de novo, meaning independently rather than deferring to the magistrate judge’s recommendation on that issue. The court held that the time limit for filing the bankruptcy appeal was jurisdictional. Because the appeal was untimely, the district court lacked subject-matter jurisdiction to consider it.
The court further held that a court without subject-matter jurisdiction cannot dismiss a case with prejudice. It therefore overruled Togut’s objection, adopted Judge Cave’s Report and Recommendation in its entirety, and dismissed Marianne Nestor’s appeal without prejudice. The clerk was directed to close the case and mail a copy of the order to Marianne Nestor. The district court did not decide whether the Bankruptcy Court was correct to deny the motion to remove Togut.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.