in-re-vogel-van-storage-inc-debtor-william-m-mccarthy-esq-as , 142 F.3d 571 ( 1998 )

142 F.3d 571

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.

United States Court of Appeals,
Second Circuit.

Argued Feb. 24, 1998.
Decided April 27, 1998.

Richard L. Weisz, Hodson, Russ, Andrews, Woods & Goodyear, Albany, NY, for Appellants.

Murray S. Brower, Catone & Brower, Albany, NY, for Appellee.

Before: WINTER, Chief Judge, PARKER, Circuit Judge, and SCHWARZER, District Judge.*

PER CURIAM:

1

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).

2

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.

3

We therefore affirm.

*

The Honorable William W. Schwarzer, of the United States District Court for the Northern District of California, sitting by designation