EMPIRE ERECTORS AND ELECTRICAL COMPANY, INC., plfap, v. UNLIMITED LOCATIONS LLC def-res

8920. EMPIRE ERECTORS AND ELECTRICAL COMPANY, INC., plfap, v. UNLIMITED LOCATIONS LLC def-res — Lopresto & Barbieri, P.C., Astoria (Guy Barbieri of counsel), for ap — Angiuli & Gentile, LLP, Staten Island (Alan Karmazin of counsel), for res — Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered December 23, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to compel the depositions of defendants Justin Sallusto and Joseph Indelicato, unanimously reversed, on the law, with costs, the motion granted, and the matter remanded to Supreme Court for further proceedings.

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8920. EMPIRE ERECTORS AND ELECTRICAL COMPANY, INC., plfap, v. UNLIMITED LOCATIONS LLC def-res — Lopresto & Barbieri, P.C., Astoria (Guy Barbieri of counsel), for ap — Angiuli & Gentile, LLP, Staten Island (Alan Karmazin of counsel), for res — Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered December 23, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion to compel the depositions of defendants Justin Sallusto and Joseph Indelicato, unanimously reversed, on the law, with costs, the motion granted, and the matter remanded to Supreme Court for further proceedings.

Sallusto and Indelicato are being sued as guarantors of an agreement between plaintiff and defendant Unlimited Locations LLC. The court erred in denying plaintiff’s motion on the basis of the automatic stay triggered by the bankruptcy petition filed by Unlimited only (see 11 USC §362[a]). The automatic bankruptcy stay is generally not extended to non-debtor guarantors (see Milliken & Co. v. Stewart, 182 AD2d 385, 386 [1st Dept 1992], citing Credit Alliance Corp. v. Williams, 851 F2d 119 [4th Cir 1988]). The automatic stay normally applies to nondebtors only when a claim against a non-debtor will have “an immediate adverse economic consequence for the debtor’s estate” (Queenie, Ltd. v. Nygard Intl., 321 F3d 282, 287 [2d Cir 2003]). Sallusto and Indelicato have not made a showing that the continuation of this action against them would have such an effect on Unlimited’s estate.

EMPIRE ERECTORS AND ELECTRICAL COMPANY, INC., plfap, v. UNLIMITED LOCATIONS LLC def-res

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