IN RE:  VOGEL VAN & STORAGE

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United States Court of Appeals,Second Circuit.

IN RE:  VOGEL VAN & STORAGE, INC., Debtor. William M. McCARTHY, Esq., as Trustee for the Estate of Vogel Van & Storage, Inc. Plaintiff-Appellant-Cross-Appellee, v. NAVISTAR FINANCIAL CORPORATION, formerly known as International Harvester Credit Corp., and Navistar, Inc., formerly known as International Harvester Company, Defendants-Appellees-Cross-Appellants.

Nos. 97-5055, 97-5057.

Decided: April 27, 1998

Before: WINTER, Chief Judge, PARKER, Circuit Judge, and SCHWARZER, District Judge.* Richard L. Weisz, Hodson, Russ, Andrews, Woods & Goodyear, Albany, NY, for Appellants. Murray S. Brower, Catone & Brower, Albany, NY, for Appellee.

William M. McCarthy, trustee for the estate of Vogel Van & Storage, Inc. (“Vogel Van”), appeals from a judgment of the United States District Court for the Northern District of New York, affirming the bankruptcy court's conclusion that a payment by Vogel Van to appellees was made in the ordinary course of business for purposes of 11 U.S.C. § 547(c)(2) and was therefore not avoidable as a preferential transfer pursuant to Section 547(b).   We affirm for substantially the reasons stated in Judge Scullin's opinion.  In re Vogel Van & Storage, Inc., 210 B.R. 27, 34-37 (N.D.N.Y.1997).

Because we agree with Judge Scullin that Vogel Van's payment was made in the ordinary course of business, we do not reach appellees' assertion on cross-appeal that Key Bank, a creditor of Vogel Van, was not entitled under 11 U.S.C. § 547(b) to pursue, on behalf of the bankruptcy estate, the appeal from the bankruptcy court's judgment.

We therefore affirm.

PER CURIAM: