Bernard S. Greco, Jericho, N.Y., for debtors.
Michael Macco, Melville, N.Y., trustee.
Philip Irwin Aaron, P.C., Jericho, N.Y., for Standard Federal Sav. and Loan Ass'n.
ROBERT JOHN HALL, Bankruptcy Judge.
This matter came to be heard on the motion of debtors in this chapter 13 bankruptcy for an order vacating the court's dismissal of this case on July 23, 1985. Debtors' attorney contends that neither he nor his clients attended the hearing on July
23, 1985 because he assumed that Standard Federal's motion would be automatically adjourned. The court finds that debtors have failed to establish cause to vacate the dismissal of their case, and hereby denies the motion.
FACTS
1. On June 11, 1985 debtors filed a chapter 13 petition for bankruptcy in this court. A hearing on confirmation of the debtors' proposed plan was scheduled for July 23, 1985 at 11 a.m.
2. On July 11, 1985 Standard Federal moved to deny confirmation of debtors' proposed plan, or in the alternative, obtain relief from the automatic stay, or in the alternative to dismiss the debtors' case. Standard Federal stated with regard to its mortgage on the debtors' real property:
Mortgage arrears from 9/82
to 6/85 at 674.00 per month $22,916.00
Late charges 916.64
Legal fees and expenses 1,467.00
Other charges: Inspections 50.00
Less unapplied sums
Present value of 12% interest
over 60 months 8,483.76
TOTAL $33,833.40
3. The motion was marked returnable on July 23, 1985, the same date as debtors' confirmation hearing.
4. The confirmation hearing was subsequently adjourned.
5. On July 23, 1985 Standard Federal appeared, but neither the debtors nor their attorney appeared; nor were pleadings in opposition to Standard Federal's motion filed.
Accordingly, the court dismissed debtors' petition.
6. Counsel for debtors timely filed a motion to vacate the courts' order in which he stated that:
DISCUSSION
Debtors' counsel set forth his only argument in favor of vacating the court's order of dismissal as follows:
Page 148.
With all due respect to Mr. Greco, I have presided over this court for more than several years, yet I am aware of no custom that automatically makes adjournments. Generally, I grant adjournments upon request if all parties consent. Otherwise, I grant adjournments for cause shown. In this case, no one even requested an adjournment. Mr. Greco's pleadings do not contain any citations to laws or cases, and at best his argument is shameful.
Bankruptcy Rule 9024 incorporates Rule 60 of the Federal Rules of Civil Procedure to determine when relief from an order is appropriate. Rule 60(b)(1) authorizes the court to give relief from an order for "mistake, inadvertance, surprise, or excusable neglect." For example, the First Circuit held that when a party failed to show at a hearing due to medication causing him to oversleep, the matter could be restored. Dennan v. Shubow, 413 F.2d 258 (1st Cir.1969). In another case, it was held that bedridden illness is grounds to accord relief from default for failure to appear at trial. Ken-Mar Airpack, Inc. v. Toth Aircraft & Accessories Co., 12 F.R.D. 399 (D.C.Md.1952). This case is unlike the cited instances of excusable neglect.
SO ORDERED.