In Re: Nestor
- Rearden
- 1:24-cv-06250
- U.S. District Court · Southern District of New York
- 5
Nestor v. Togut: Judge Rearden dismissed Marianne Nestor’s bankruptcy appeal without prejudice because it was filed too late and the court lacked jurisdiction.
Marianne Nestor’s appeal from a bankruptcy-court order was dismissed without prejudice because the notice of appeal was untimely and the district court lacked subject-matter jurisdiction. Albert Togut’s request for dismissal with prejudice was rejected.
What happened
In In Re: Nestor, Marianne Nestor, representing herself, appealed a bankruptcy-court order involving the retention of a law firm as special real-estate counsel for a Chapter 11 trustee. The appeal concerned an order issued by Bankruptcy Judge Michael E. Wiles.
The district court found that Nestor did not file her notice of appeal within the required 14-day period. A magistrate judge recommended dismissing the appeal without prejudice because the court lacked authority to hear it. The appellee objected only to the recommendation that the dismissal be without prejudice, arguing that it should instead be with prejudice.
Judge Jennifer H. Rearden overruled that objection, adopted the recommendation in full, and dismissed Nestor’s appeal without prejudice. The court also directed the clerk to close the case and mail Nestor a copy of the order.
The detailed version
- In Re: Nestor · No. 1:24-cv-06250
- Rearden
- July 25, 2025
Background
Peggy Nestor filed for Chapter 11 bankruptcy on April 25, 2023. Marianne Nestor, Peggy Nestor’s sister, became involved in the bankruptcy proceedings through co-ownership of a property with her sister. Marianne Nestor appealed a July 1, 2024 decision by Bankruptcy Judge Michael E. Wiles overruling an objection to the retention of the Phillips Nizer firm as special real-estate counsel by the Chapter 11 trustee.
The district court referred the appeal to Magistrate Judge Sarah L. Cave. Judge Cave issued an order directing Marianne Nestor to explain why the appeal should not be dismissed for lack of subject-matter jurisdiction. Federal Rule of Bankruptcy Procedure 8002(a) requires a notice of appeal to be filed within 14 days after entry of the order being appealed. Judge Cave found that Nestor had not met that deadline.
Nestor filed a response to the order to show cause. Judge Cave then issued a Report and Recommendation concluding that the court lacked jurisdiction and recommending that the appeal be dismissed without prejudice. Albert Togut objected only to the recommended form of dismissal. Togut argued that the appeal should be dismissed with prejudice, relying in part on his contention that Nestor and the debtor had filed multiple untimely appeals that interfered with the trustee’s work and imposed costs on the bankruptcy estate.
Court’s analysis
Judge Rearden reviewed de novo the objection concerning whether the dismissal should be with or without prejudice. The court explained that when a court lacks subject-matter jurisdiction, it lacks power to dismiss with prejudice. The court also relied on authority stating that the deadline in Rule 8002(a) is jurisdictional and that a district court lacks jurisdiction over a bankruptcy appeal filed after that deadline.
Disposition
The court 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 Nestor a copy of the order.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.