In Re 47-49 Charles Street, Inc.
John S. Pereira, Chapter 7 trustee of the debtor 47-49 Charles Street, Inc., moves to remand certain landlord-tenant actions to the Civil Court of the City of New York, from which they were removed by Joseph Fischer. Because Fischer had no standing or basis to remove those actions, and pursuant to 28 U.S.C. § 1452(b), I grant the motion to remand the actions.
BACKGROUND
On May 28, 1993, the debtor, 47-49 Charles Street, Inc., filed a bankruptcy petition under Chapter 11 of the United States Bankruptcy Code in the U.S. Bankruptcy Court for the Southern District of New York. By order of the Bankruptcy Court dated March 10, 1995, the case was converted to a Chapter 7 case and John S. Pereira was appointed trustee. The debtor’s assets consist of two adjoining brownstone buildings located at 47-49 Charles Street in New York City containing rental units and a carriage house located to the rear known as 253 West 4th Street (collectively the “Premises”). The Premises are currently being operated by the trustee under a series of operating orders of the Bankruptcy Court. Fischer is an occupant of one of the units of the Premises.
The trustee commenced several landlord-tenant actions in the Civil Court of New York for nonpayment of rent by certain residential tenants in the Premises. Specifically, the trustee brought actions against: (1) Richard Dunnington and Gregory Ballweg (Index No. 69756/96); (2) John R. O’Connor and Kathryn O’Connor (Index No. 69757/96); and (3) Philip Foxman (Index No. 69758/96). Fischer filed motions dated May 13,1996 and May 17, 1996 in the landlord-tenant actions seeking to stay those actions and to intervene therein. Those motions were denied. Then, despite the failure of his efforts to intervene, Fischer removed the landlord tenant actions to this Court on May 21, 1996. He purports to have removed the actions in his capacity as the “sole equity security holder of the debtor” and on behalf of 47-49 Charles Street, Inc., pursuant to N.Y. City Civ.Ct. Act 110(1). Now, the trustee moves to remand those actions.
DISCUSSION
The bankruptcy removal statute provides that “[a] party may remove any claim or cause of action in a civil action to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.” 28 U.S.C. § 1452(a). In addition, the general removal statute provides that “the defendant or defendants” may remove any case over which the district courts have original jurisdiction. 28 U.S.C. § 1441. Fischer is not a party to any of the landlord tenant actions and, in fact, his motions to intervene in those actions were denied. Accordingly, he cannot remove the actions in his own name.
The debtor, of course, is a party and may remove an action under 28 U.S.C. § 1452(a). Once a trustee is appointed in a bankruptcy case, however, the trustee, not the debtor or the debtor’s principal, has the capacity to represent the estate and to sue and be sued under 11 U.S.C. §§ 323(a) and (b). See 2 COLLIER ON BANKRUPTCY, ¶ 323.01, at 323-2, ¶ 323.02[3], at 323-7 (15th ed.1989);
see also Bauer v. Commerce Union Bank, Clarksville, Tennessee,
Finally, as an independent basis for my decision, I remand the landlord tenant actions on “equitable grounds” pursuant to
CONCLUSION
For the foregoing reasons, these actions are remanded to the Civil Court of the City of New York.
SO ORDERED.
Notes
. I also note the likelihood that Fischer’s "notice of removal,” filed on May 21, 1996, was filed more than thirty days after "receipt, through service or otherwise, of a copy of the initial pleading setting forth the claim or cause of action sought to be removed.” Bankr.Rule 9027(a)(3). Because Fischer was never a party to any of the landlord tenant actions, however, it is difficult to ascertain the exact date when he received the initial pleading. Fischer simply