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In re Penn Traffic Co.

Non-debtor party to contract that was executory when bankruptcy case commenced could not, by post-petition tender or performance, deprive debtor of statutory authority to reject contract as disadvantageous to bankruptcy estate.

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Submitted: September 27, 2007

Before: MINER and WESLEY, Circuit Judges, SWAIN, District Judge.*fn1

This matter comes before us on the appeal of COR Route 5 Company, LLC (“COR” or “Appellant”), from a consent order of the United States District Court for the Southern District of New York (Buchwald, J.), affirming a stipulated bankruptcy court order authorizing the rejection of a supermarket construction, land sale and leaseback contract.*fn2 An earlier appeal of Judge Buchwald’s 2005 order affirming in part, reversing in part and remanding a 2005 order of the United States Bankruptcy Court for the Southern District of New York (Hardin, B.J.) in which the Bankruptcy Court, finding that the contract was non-executory as of the time the debtor had moved to reject it and for that reason denying the motion to reject, was dismissed by this Court in 2006 for lack of jurisdiction. See COR Route 5 Co., LLC v. The Penn Traffic Co. (In re The Penn Traffic Co.), 466 F.3d 75 (2d Cir. 2006) (“Penn Traffic III”). The consent order from which COR appeals explicitly provided for the preservation in this appeal of the issues raised in the initial appeal, by “restat[ing] and reissu[ing]” the District Court’s opinion in The Penn Traffic Co. v. COR Route 5 Co., LLC (In re The Penn Traffic Co.), No. 05 Civ. 3755 (NRB), 2005 WL 2276879 (S.D.N.Y. Sept. 16, 2005) (“ Penn Traffic II”) “as the Memorandum and Order of this Court on the Second District Court Appeal from the Bankruptcy Court Rejection Order,” and affirming the Bankruptcy Court Rejection Order without prejudice to the parties’ rights to appeal. (Mem. and Order Deciding Appeal from Order of Bankruptcy Ct. at 3, Apr. 9, 2007.)

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