In Re: Peggy Nestor
- Rearden
- 1:24-cv-07113
- U.S. District Court · Southern District of New York
- 5
In Re: Peggy Nestor v. Albert Togut: Judge Rearden dismissed Peggy Nestor’s bankruptcy appeal without prejudice because her notice was late and the court lacked jurisdiction.
Peggy Nestor’s appeal was dismissed without prejudice because the district court found that her notice of appeal was untimely and that it lacked jurisdiction. Albert Togut’s request for dismissal with prejudice was rejected.
What happened
In Re: Peggy Nestor v. Albert Togut concerned Peggy Nestor’s appeal from a Bankruptcy Court order requiring her to comply with an earlier order and a trustee’s subpoena. Nestor filed the appeal without a lawyer.
A magistrate judge recommended dismissing the appeal because Nestor did not file her notice of appeal within the required 14-day period. Albert Togut objected only to the recommendation that the dismissal be without prejudice, arguing that it should be with prejudice because Nestor had filed other late appeals and further appeals could harm the bankruptcy estate and creditors.
Judge Jennifer H. Rearden overruled Togut’s objection, adopted the recommendation in full, and dismissed Nestor’s appeal without prejudice. The court stated that the late filing deprived it of authority to hear the appeal and directed the clerk to close the case and mail the order to Nestor.
The detailed version
- In Re: Peggy Nestor · No. 1:24-cv-07113
- Rearden
- July 25, 2025
Background
Peggy Nestor filed for Chapter 11 bankruptcy in the Bankruptcy Court on April 25, 2023. Her district-court appeal challenged a July 26, 2024 Bankruptcy Court decision by Judge Michael E. Wiles requiring her to comply with an earlier order and with a subpoena issued by the Chapter 11 trustee.
The district court referred the appeal to Magistrate Judge Sarah L. Cave. Judge Cave ordered Nestor to explain why the case should not be dismissed for lack of subject-matter jurisdiction, meaning the court’s legal authority to decide the appeal. The order noted that Federal Rule of Bankruptcy Procedure 8002(a) requires a notice of appeal to be filed within 14 days after the appealed order is entered. Judge Cave concluded that Nestor’s notice was late and therefore questioned whether the district court had authority to hear the appeal. Nestor filed a response.
Report and Recommendation and Objection
Judge Cave recommended that the appeal be dismissed without prejudice because the court lacked jurisdiction. Albert Togut objected only to the form of the proposed dismissal. He argued that the appeal should be dismissed with prejudice, meaning permanently, rather than without prejudice. Togut asserted that Nestor and her sister had filed untimely appeals from nearly every Bankruptcy Court order entered after Togut became trustee, and that the appeals impeded administration of the bankruptcy estate, imposed costs, and served no useful purpose.
Court’s Analysis
Judge Rearden reviewed Togut’s objection independently. The court explained that the time limit for appealing a bankruptcy order is jurisdictional. Because Nestor’s notice of appeal was not filed within the required period, the district court lacked authority to consider the appeal. The court also relied on the principle that a court without subject-matter jurisdiction cannot dismiss a case with prejudice.
Disposition
The court overruled Togut’s objection, adopted Judge Cave’s Report and Recommendation in its entirety, and dismissed Nestor’s appeal without prejudice. The clerk was directed to close the case and mail a copy of the order to Nestor.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.