United States Second Circuit

The district court's affirmance of the bankruptcy court's denial of a landlord's motion to recover post-petition rent, attorneys' fees, and interest for the period between its former tenant's Chapter 7 filing date and the date a warrant of eviction was executed, is vacated and remanded, as a lease is "unexpired" for purposes of section 365(d)(3) of the Bankruptcy Code when the tenant has the power to revive the lease under applicable state law. Here, because in New York it is the execution, and not the issuance, of the warrant eviction that extinguishes the tenant's interest in a lease, the lease is "unexpired" for purposes of section 365(d)(3).

Appellate Information

• Decided 08/02/2012
• Published 08/02/2012

Judges

• Calabresi

Court

• United States Second Circuit

Counsel