In Re: Peggy Nestor
1:24-cv-07274
S.D.N.Y.Jul 24, 2025Background
- Marianne Nestor, proceeding pro se, appealed an order from the U.S. Bankruptcy Court for the Southern District of New York involving her sister Peggy Nestor’s Chapter 11 bankruptcy case.
- The dispute involved a decision by Bankruptcy Judge Michael E. Wiles extending a listing agreement with Sotheby’s for sale of jointly owned property.
- Appellant was required by Federal Rule of Bankruptcy Procedure 8009(a) to file a designation of the record and a statement of issues for the appeal but failed to do so.
- Magistrate Judge Sarah L. Cave issued an order to show cause, providing Nestor an opportunity to explain the failure as 'excusable neglect,' and gave a deadline to respond.
- Nestor did not respond or request additional time; Judge Cave recommended dismissal of the appeal for procedural noncompliance.
- No objections were filed to the Report and Recommendation; the District Court reviewed for clear error and adopted the dismissal with prejudice.
Issues
| Issue | Nestor's Argument | Appellee's Argument | Held |
|---|---|---|---|
| Dismissal for failure to comply with FRBP 8009(a) | Not articulated, as Nestor did not respond | Noncompliance warrants dismissal | Appeal dismissed with prejudice |
| Waiver of objections to Report and Recommendation | No objections filed | Failure to object waives further review | Objections waived; no review required |
| Sufficiency of Report and Recommendation | No argument presented | Magistrate judge’s findings are sound | No clear error found; adopted |
| Opportunity to cure procedural defect | No motion for extension or explanation given | Court provided opportunity to cure | No response; dismissal appropriate |
Key Cases Cited
- Frank v. Johnson, 968 F.2d 298 (2d Cir. 1992) (failure to object to magistrate’s report waives further judicial review)
- Thomas v. Arn, 474 U.S. 140 (1985) (timely objections required to preserve appellate review)
- Mario v. P & C Food Markets, Inc., 313 F.3d 758 (2d Cir. 2002) (clear notice of waiver consequences mandates strict application of objection requirement)
- Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (failure to object to magistrate’s report precludes further judicial review)