UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

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In re

KOLLEL MATEH EFRAIM, LLC, a/k/a

MATEH EPHRAIM LLC, a/k/a

KOLEL MATEH EFRAIM

Debtor.

Chapter 11

Case No. 04-16410 (SMB)

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APPELLANT’S DESIGNATION OF ITEMS TO BE INCLUDED IN THE RECORD ON

APPEAL AND STATEMENT OF ISSUES FOR APPEAL

Kollel Mateh Efraim, a/k/a Mateh Ephraim LLC, a/k/a Kolel Mateh Efraim 

(“Debtor” or “Appellant”), pursuant to Federal Rule of Bankruptcy Procedure 8006, for its

designation of items to be included in the record and statement of the issues for appeal, states as

follows: 

DESIGNATION OF ITEMS TO BE INCLUDED IN THE RECORD

Exhibit

Number

ECF

Docket

Number

Description

1 54 Transcript of Hearing held on July 20, 2005

2 39 Debtor’s Notice of Proposed Order, with attachments

3 40 Debtor’s Notice of Settlement of Order, with attachments

4 41 Helen-May Holdings, LLC’s (“HMH”) Objection to Motion/proposed

“Order Approving Settlement”

5 42 Debtor’s Response to Objection to Proposed Order Approving

Settlement 

6 43 HMH’s Objection in further Opposition to Debtor’s Notice of

Settlement of Proposed Order and in Reply to Debtor’s Response to

HMH’s Objection 

7 44 Debtor’s Motion to Approve/Enforce the July 20, 2005 Settlement 

Case 1:07-cv-03407-GBD Document 2 Filed 04/30/2007 Page 1 of 6
8 46 HMH’s Response to Motion to Enforce Settlement

9 48 Response by the Debtors to HMH’s Response and in further Support

of the Debtor’s Motion to Enforce the July 20, 2005 Settlement

Agreement

10 52 Transcript of Hearing held on June 28, 2005

11 53 Transcript of Hearing held on November 22, 2005

12 55 Written Opinion and Order Denying Motion for Summary Judgment

13 75 Transcript of Hearing/Trial held on July 19, 2006

14 77 Transcript of Hearing/Trial held on July 24, 2006

15 76 Transcript of Hearing/Trial held on July 27, 2006

16 79 HMH’s Findings of Fact and Conclusions of Law

17 85 Debtor’s Findings of Fact and Conclusions of Law

18 86 HMH’s Reply to Motion and Proposed Findings of Fact of the Debtor

19 87 Debtor’s Designation of Testimony from the Deposition of Irene

Griffin, dated August 11, 2006

20 88 Debtor’s Designation of Testimony from the Deposition of Gerald

Orseck (“Orseck”), dated August 11, 2006

21 89 Debtor’s Designation of Testimony from the Deposition of Gene

Barbanti (“Barbanti”), dated August 11, 2006

22 90 Debtor’s Designation of Testimony from the Deposition of Kirk

Orseck, dated August 11, 2006

23 91 Debtor’s Designation of Testimony from the Deposition of Paul

Griffin (“P. Griffin”), dated August 11, 2006

24 92 Debtor’s Designation of Testimony from the Deposition of Daniel

Scher (“Scher”), dated August 11, 2006

25 93 Debtor’s Counter-Designation of Testimony from the Deposition of

Scott Krinsky (“Krinsky”), dated December 27, 2006

26 95 Memorandum Endorsement and Order signed on February 16, 2007

Striking Designations

27 96 Post-Trial Findings of Fact and Conclusions of Law signed on

February 23, 2007 

28 97 HMH’s Notice of Presentment of proposed order

Case 1:07-cv-03407-GBD Document 2 Filed 04/30/2007 Page 2 of 6
29 99 Order Denying Motion to Enforce Terms of a Settlement signed on 

March 6, 2007 

30 100 Notice of Appeal

31 Debtor Trial Ex. 1; May 16, 2005 Consent to Change Attorney

32 Debtor Trial Ex. 2; May 25, 2005 Memo from P. Griffin to Orseck 

33 Debtor Trial Ex. 7; July 18, 2005 settlement letter from Krinsky to

Orseck

34 Debtor Trial Ex. 8; July 19, 2005 letter from Orseck to Krinsky

35 

 

Debtor Trial Ex. 9; July 18, 2005 fax letter from HMH to Orseck

36 Debtor Trial Ex. 10; Portions of Transcript of July 20, 2005 Hearing

containing Settlement on the Record

37 Debtor Trial Ex. 11; July 20, 2005 E-Mails from P. Griffin to Orseck

38 Debtor Trial Ex. 12; July 20, 2005 E-Mail from P. Griffin to Scher:

“Subject Settlement”

39 Debtor Trial Ex. 13; July 20, 2005 Fax from HMH to Orseck

40 Debtor Trial Ex. 14; July 20, 2005 E-Mail from P. Griffin to Scher

41 Debtor Trial Ex. 15; July 25, 2005 E-Mail from P. Griffin to Scher:

Subject “Settlement Offer”

42 Debtor Trial Ex. 19; August 5, 2005 Fax from HMH to Orseck

43 Debtor Trial Ex. 20; August 5, 2005 E-Mail from Scher to Orseck and

P. Griffin with attached Notice of Settlement

44 Debtor Trial Ex. 23; August 10, 2005 Letter from Orseck to

Backenroth, Frankel & Krinsky, LLP (“BFK”)

45 41 Debtor Trial Ex. 26; August 11, 2005 HMH Objection to Proposed

Order Approving Settlement

46 Debtor Trial Ex. 27; August 11, 2005 Fax from Scher to Orseck with

attached Amended HMH Objection to Proposed Order Approving

Settlement

47 Debtor Trial Ex. 28; Various E-Mails and Letters from August 15,

2005 through September 7, 2005 sent by Scher, P.Griffin or Orseck

and received by Scher, P.Griffin, Orseck and HMH

Case 1:07-cv-03407-GBD Document 2 Filed 04/30/2007 Page 3 of 6
48 Debtor Trial Ex. 31; August 30, 2005 Invoice from TypeWrite Word

Processing Service (“TypeWrite”) and Completed TypeWrite Order

Form from Scher, dated August 30, 2005, Ordering July 20, 2005

Transcript and Fax Sheet from Scher to TypeWrite 

49 Debtor Trial Ex. 33A; August 30, 2005 E-Mail from Scher to P.

Griffin re July 20, 2005 Transcript

50 Debtor Trial Ex. 33B; September 1, 2005 E-Mail from P. Griffin to

Scher re July 20, 2005 Transcript

51 Debtor Trial Ex. 34; August 30, 2005 Letter from Orseck to BFK

52 Debtor Trial Ex. 36; September 7, 2005 Fax Letter from Orseck to

Mark Frankel (“Frankel”) of BFK; & September 7, 2005 Fax Letter

from Frankel to Orseck

53 Debtor Trial Ex. 40A; August 16, 2005 E-Mail from Scher to Orseck 

54 Debtor Trial Ex. 40B; September 6, 2005 Letter from Scher to Orseck

55 Debtor Trial Ex. 42; September 15, 2005 Stipulation of Substitution

of Counsel

56 Debtor Trial Ex. 43; November 16, 2005 Orseck Motion to be

Relieved as Counsel to I.Griffin & P.Griffin in the action entitled

Griffin v. Chrabuszcz, Index No. 2892/03 (Sup.Ct. Sullivan Co.)(the

“Griffin Action”) 

57 Debtor Trial Ex. 44; June 13, 2006 Docket Sheet for the Griffin

Action

58 Debtor Trial Ex. 53; June 18, 2005 Letter from P.Griffin /HMH to

Barbanti

59 HMH Trial Ex. 2; May 16, 2005 letter from Orseck to Abraham

Backenroth 

60 HMH Trial Ex. 3; June 3, 2005 letter from Orseck to Krinsky

61 54 HMH Trial Ex. 17; July 20, 2005 Transcript of Hearing

62 HMH Trial Ex. 18; Monthly Telephone Bills

Case 1:07-cv-03407-GBD Document 2 Filed 04/30/2007 Page 4 of 6
STATEMENT OF ISSUES TO BE PRESENTED ON APPEAL

1. Whether the Bankruptcy Court erred in denying the Debtor’s motion to 

enforce the July 20, 2005 settlement made on the record in open Court between Debtor’s counsel

and HMH’s counsel, Orseck.

2. Whether the Bankruptcy Court erred in ruling that Orseck lacked

apparent 

authority to enter into the July 20, 2005 settlement made on the record in open Court, especially

since (a) the attorneys, including HMH’s counsel, Orseck, had appeared at court conferences,

including a settlement conference, and were thereby required under FRCP 16(c), made

applicable through FRBP 7016, to have settlement authority; (b) HMH knew that its counsel,

Orseck, was discussing settlement with Debtor’s counsel prior to the July 20, 2005 settlement;

(c) HMH failed to promptly advise the Court of Orseck’s unauthorized settlement conduct; (d)

Orseck continued to represent HMH post-Settlement, including in attempting to schedule postSettlement negotiations; and (e) HMH’s counsel, Orseck, admittedly had settlement authority,

albeit at higher numbers.

3. Whether the Bankruptcy Court erred in ruling that HMH met its burden 

of demonstrating that Orseck lacked actual authority to enter into the July 20, 2005 settlement

made on the record in open Court.

The Appellant reserves the right to modify, restate and/or supplement the

foregoing designation of items and statement of issues to the fullest extent permitted by the

Bankruptcy Code and Rules.

Case 1:07-cv-03407-GBD Document 2 Filed 04/30/2007 Page 5 of 6
Dated: New York, New York

March 25, 2007

 

BACKENROTH FRANKEL & KRINSKY LLP

 By: /s/ Scott Krinsky 

Scott Krinsky (SK-2049)

489 Fifth Avenue, 28th Floor

New York, New York 10017

Tel: (212) 593-1100

Fax: (212) 644-0544

Case 1:07-cv-03407-GBD Document 2 Filed 04/30/2007 Page 6 of 6