COOLEY LLP 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 479-6000 Facsimile:

(212) 479-6275 James A. Beldner Lawrence C. Gottlieb Lesley A. Kroupa

Presentment Date and Time: May 13, 2011 at 12:00 p.m. (Eastern) Objection Deadline: May 13, 2011 at 11:30 a.m. (Eastern)

Attorneys for Debtor and Debtor-in-Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------- x : : In re : : LEHR CONSTRUCTION CORP., : : Debtor. : ---------------------------------------------------------------- x

Chapter 11 Case No. 11-10723 (SHL)

NOTICE OF PRESENTMENT OF ORDER EXTENDING PERIOD WITHIN WHICH DEBTOR MAY REMOVE ACTIONS PURSUANT TO 28 U.S.C. 1452 AND RULE 9027 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE PLEASE TAKE NOTICE that, upon the annexed motion dated May 6, 2011 (the Motion) of Lehr Construction Corp., as debtor and debtor-in-possession (the Debtor),1 for an order extending the period within which it may remove actions pursuant to 28 U.S.C. 1452 and Rule 9027 of the Federal Rules of Bankruptcy Procedure, all as more fully described in the Motion, the Debtor will present the proposed order attached to the Motion for signature to the Honorable Sean H. Lane, United States Bankruptcy Judge of the United States Bankruptcy Court for the Southern District of New York, Alexander Hamilton Custom House, One Bowling Green, New York, New York 10004, on May 13, 2011 at 12:00 noon (prevailing Eastern Time).
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The last four digits of the Debtors federal tax identification number are 3507. The Debtors mailing address is 902 Broadway, New York, New York 10010. 1

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PLEASE TAKE FURTHER NOTICE that objections, if any, to the Motion, must be in writing, must conform to the Federal Rules of Bankruptcy Procedure and the Local Rules of the Bankruptcy Court for the Southern District of New York, must set forth the name of the objecting party, the nature and amount of claims or interests held or asserted by the objecting party against the Debtors estate or property, the basis for the objection and the specific grounds therefor, and must be filed with the Bankruptcy Court electronically in accordance with General Order M-399 (General Order M-399 and the Users Manual for the Electronic Case Filing System may be found at www.nysb.uscourts.gov, the official website for the Bankruptcy Court) by registered users of the Bankruptcy Courts case filing system, and by all other parties in interest on a 3.5 inch disk, preferably in Portable Document Format (PDF), WordPerfect, or any other Windows-based word processing format (with two hard copies delivered directly to Chambers of the Honorable Sean H. Lane), and any objection must further be served upon: (i) the Debtor, Lehr Construction Corp., 902 Broadway, New York, NY 10010 (Attn: Todd Phillips); (ii) attorneys to the Debtor, Cooley LLP, 1114 Avenue of the Americas, New York, NY 10036 (Attn: James A. Beldner, Esq.); (iii) attorneys to the official committee of unsecured creditors, Klestadt & Winters, LLP, 570 Seventh Avenue, 17th Floor, New York, NY 10018 (Attn: Sean C. Southard, Esq.); and (iv) the Office of the United States Trustee for the Southern District of New York, 33 Whitehall Street, 21st Floor, New York, NY 10004 (Attn: Susan Golden, Esq.),, so as to be received no later than May 13, 2011 at 11:30 a.m. (prevailing Eastern Time). Unless objections are received by that time, there will not be a hearing, and the proposed order may be signed. PLEASE TAKE FURTHER NOTICE that if a written objection is timely filed, served and received, the Court will hold a hearing on May 20, 2011 at 10:00 a.m. (prevailing

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Eastern time). Objecting parties are required to attend the hearing, and failure to attend in person or by counsel may result in relief being granted or denied upon default. Dated: May 6, 2011 New York, New York Respectfully submitted, By: /s/ James A. Beldner James A. Beldner

COOLEY LLP 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275 James A. Beldner (JB 7166) Lawrence C. Gottlieb (LG 2565) Lesley A. Kroupa (LK 2620) Attorneys for Debtor and Debtor-in-Possession

3
1719017 v1/NY

COOLEY LLP 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275 James A. Beldner Lawrence C. Gottlieb Lesley A. Kroupa

Presentment Date and Time: May 13, 2011 at 12:00 p.m. (Eastern) Objection Deadline: May 13, 2011 at 11:30 a.m. (Eastern)

Attorneys for Debtor and Debtor-in-Possession UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------- x : : In re : : LEHR CONSTRUCTION CORP., : : Debtor. : ---------------------------------------------------------------- x

Chapter 11 Case No. 11-10723 (SHL)

MOTION OF THE DEBTOR FOR AN ORDER EXTENDING THE PERIOD WITHIN WHICH IT MAY REMOVE ACTIONS PURSUANT TO 28 U.S.C. 1452 AND RULE 9027 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE Lehr Construction Corp., as debtor and debtor-in-possession (the Debtor),1 respectfully represents: BACKGROUND 1. On February 21, 2011 (the Petition Date), the Debtor commenced with

this Court a voluntary case under chapter 11 of title 11 of the United States Code (the Bankruptcy Code). 2. The Debtor is authorized to operate its business and manage its property as

debtor-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.2 The last four digits of the Debtors federal tax identification number are 3507. The Debtors mailing address is 902 Broadway, New York, New York 10010. 1
1

3.

On March 11, 2011, the Office of the United States Trustee (the U.S.

Trustee) appointed an official committee of unsecured creditors pursuant to section 1102 of the Bankruptcy Code (the Committee). The Debtors Business 4. Lehr Construction Corp., a New York corporation, was founded in 1979

and has evolved from a small entrepreneurial business to one of the most respected builders in New York. Lehr specializes in interior construction and serves clients mainly throughout the New York metropolitan area. Lehr serves as construction manager and/or general contractor for its clients and Lehrs construction professionals work closely with their in-house estimating, purchasing, quality control and value engineering professionals to ensure projects are completed on schedule, within budget, and with impeccable quality. 5. Lehrs projects range from minor renovations to interior office build-outs

over a million square feet. Lehrs broad range of clients include retail stores, financial service firms, educational organizations, entertainment and media firms, and many others. 6. The Debtors headquarters is located in New York, New York and it has a

warehouse facility in Woodhaven, New York. The Debtors primary assets include contract rights and accounts receivable for its on-going and completed projects JURISDICTION 7. This Court has jurisdiction to consider this matter pursuant to 28 U.S.C.

157 and 1334. This is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper before this Court pursuant to 28 U.S.C. 1408 and 1409.

On May 5, 2011, the U.S. Trustee filed a Motion for an Order Directing the Appointment of a Chapter 11 Trustee (Docket No. 179). A hearing regarding this motion is scheduled, as of the date hereof, for May 11, 2011. 2

RELIEF REQUESTED 8. Pursuant to Rule 9027(a)(2) of the Federal Rules of Bankruptcy Procedure

(the Bankruptcy Rules), the existing time within which the Debtor may file notices of removal (the Removal Period) for civil actions and proceedings in state and federal courts to which the Debtor is or may become a party (the Civil Actions) that have not been stayed pursuant to section 362(a) of the Bankruptcy Code expires on May 22, 2011. By this Motion, the Debtor seeks, pursuant to section 105(a) of the Bankruptcy Code and Bankruptcy Rules 9006(b) and 9027, an enlargement of the Removal Period for 90 days until August 20, 2011. Basis for Relief Requested 9. Section 1452 of title 28 of the United States Code provides for the

removal of pending claims in civil actions related to bankruptcy cases. Section 1452 provides in pertinent part as follows: (a) A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental units police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title. (b) The court to which such claim or cause of action removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise . . . . 28 U.S.C. 1452. 10. Bankruptcy Rule 9027 establishes the deadline for filing notices of

removal of claims or causes of action. Bankruptcy Rule 9027(a)(2) provides in pertinent part as follows:

If the claim or cause of action in a civil action is pending when a case under the [Bankruptcy] Code is commenced, a notice of removal may be filed [in the bankruptcy court] only within the longest of (A) 90 days after the order for relief in the case under the [Bankruptcy] Code, (B) 30 days after entry of an order terminating a stay, if the claim or cause of action in a civil action has been stayed under 362 of the [Bankruptcy] Code, or (C) 30 days after a trustee qualifies in a chapter 11 reorganization case but not later than 180 days after the order for relief. Fed. R. Bankr. P. 9027(a)(2). With respect to postpetition actions, Bankruptcy Rule 9027(a)(3) provides that a notice of removal may be filed: [O]nly within the shorter of (A) 30 days after receipt, through service or otherwise, of a copy of the initial pleading setting forth the claim or cause of action sought to be removed or (B) 30 days after receipt of the summons if the initial pleading has been filed with the court but not served with the summons. 11. Finally, it is well-settled that pursuant to Bankruptcy Rule 9006(b)(1) this

Court is authorized to extend the Removal Period upon a showing of cause. See, e.g., Caperton v. A.T. Massey Coal Co., 251 B.R. 322, 325 (S.D. W.Va. 2000) (explaining that Bankruptcy Rule 9006(b) allows a court to enlarge the time period for removing actions under Bankruptcy Rule 9027(a)(3)); In re Lawrence, 233 B.R. 248, 254-55 (N.D.N.Y. 1999) (stating that Bankruptcy Rule 9006 can be used to extend the time for removal of state court litigation to federal court); Jandous Elec. Constr. Corp. v. City of New York (In re Jandous Elec. Constr. Corp.), 106 B.R. 48, 50 (Bankr. S.D.N.Y. 1989) (stating that the removal period may be extended under Bankruptcy Rule 9006); Saint Josephs Hosp. v. Dept of Pub. Welfare of Pa. (In re Saint Josephs Hosp.), 103 B.R. 643, 648 (Bankr. E.D. Pa. 1989) (extending the 90-day time period in which to seek removal of pending state court litigation). 12. Here, cause exists to extend the Removal Period for an additional 90 days.

The Debtor is evaluating whether it may seek to remove certain of the Civil Actions from state to 4

federal court and subsequently to transfer some or all of those Civil Actions to this District or this Court. As described above, under Bankruptcy Rule 9027(a)(2)(A), the Debtor is granted only 90 days to make such removal decisions, but may obtain an extension of this 90-day period for cause under Bankruptcy Rule 9006. As is customary in the construction business, the Debtor is currently party to approximately thirty (30) civil actions, the majority of which consist of negligence related claims. Absent an extension of the removal period, the Debtor risks making premature removal decisions or waiving these rights before it has had an opportunity to complete an evaluation of these issues. 13. To determine whether to remove any particular Civil Action, the Debtor

must examine and evaluate a variety of issues specific to each Civil Action. As a result of the nature and complexity of this chapter 11 case the Debtor has devoted substantially all of its time and resources since the Petition Date to completing its outstanding construction projects. Accordingly, the Debtor requires additional time to determine which, if any, of the Civil Actions should be removed and, if appropriate, transferred to this District or this Court. 14. As such, the Debtor requests that the Removal Period be extended for an

additional 90 days. In particular, the Debtor proposes that the time by which it may file notices of removal with respect to any of the Civil Actions be extended to the later of (a) 180 days after the Petition Date (i.e., August 20, 2011) or (b) 30 days after the entry of an order terminating the automatic stay with respect to the particular Civil Action sought to be removed. The Debtor further requests that this extension be without prejudice to (a) any position the Debtor may take regarding whether section 362 of the Bankruptcy Code applies to stay any Civil Actions and (b) the right of the Debtor to seek further extensions of time to remove any and all Actions.

15.

The requested relief will protect the Debtors valuable right to remove

lawsuits under 28 U.S.C. 1452 if the circumstances warrant. As such, the Debtor has demonstrated cause for the relief requested herein. Moreover, this relief will not prejudice the rights of the adverse parties pursuant to the stayed Civil Actions because such adverse parties may not prosecute the Civil Actions absent relief from the automatic stay. Further, if the Debtor removes any Civil Action to federal court, the affected adverse party will retain its right to seek remand of the removed Civil Action back to state court under 28 U.S.C. 1452(b). 16. Similar requests by debtors for extensions of the removal period have been

granted routinely by courts in this District. See, e.g., In re Boston Generating, LLC, et al., No. 10-14419 (SCC) (Bankr. S.D.N.Y. Jan. 20, 2011) [Docket No. 657] (enlarging removal period by 136 days); In re Inkeepers USA Trust, No. 10-13800 (SCC) (Bankr. S.D.N.Y. Oct. 14, 2010) [Docket No. 573] (enlarging removal period by approximately six months); In re Neff Corp., No. 10-12610 (SCC) (Bankr. S.D.N.Y. August 11, 2010) [Docket No. 340] (enlarging removal period through plan confirmation); In re Citadel Broad. Corp., No. 09-17442 (BRL) (Bankr. S.D.N.Y. Mar. 11, 2010) [Docket No. 193] (enlarging removal period by 90 days); In re Bally Total Fitness of Greater New York, Inc., Case No. 08-14818 (Bankr. S.D.N.Y. Feb. 25, 2009) (90-day extension). 17. For these reasons, the relief requested is appropriate and in the best

interests of the Debtor and its estate and creditors. NOTICE 18. The Debtor has served notice of this Motion on: (a) the Office of the

United States Trustee for the Southern District of New York; (b) counsel to the Committee; (c) counsel to Capital One Bank; (d) counsel to the Debtors postpetition lender; and (e) parties

in interest who have filed notices of appearance in this case. In light of the nature of the relief requested, the Debtor submits that no other or further notice need be provided. 19. any other court. WHEREFORE, the Debtor respectfully requests that the Court enter an order granting the relief requested and such other or further relief as is just. Dated: May 6, 2011 New York, New York Respectfully submitted, By: /s/ James A. Beldner James A. Beldner No previous request for the relief sought herein has been made to this or

COOLEY LLP 1114 Avenue of the Americas New York, New York 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275 James A. Beldner (JB 7166) Lawrence C. Gottlieb (LG 2565) Lesley A. Kroupa (LK 2620) Attorneys for Debtor and Debtor-in-Possession

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------- x : : In re : : LEHR CONSTRUCTION CORP., : : Debtor. : ---------------------------------------------------------------- x

Chapter 11 Case No. 11-10723 (SHL)

ORDER EXTENDING THE PERIOD IN WHICH THE DEBTOR MAY REMOVE ACTIONS Upon the motion, dated May 6, 2011 (the Motion),1 of Lehr Construction Corp., as debtor and debtor-in-possession (the Debtor),2 for an Order Extending Period Within Which it May Remove Actions Pursuant to 28 U.S.C. 1452 and Rule 9027 of the Federal Rules of Bankruptcy Procedure, all as set forth more fully in the Motion; and the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. 157 and 1334 and the Standing Order of Referral of Cases to Bankruptcy Judges of the District Court for the Southern District of New York, dated July 19, 1984 (Ward, Acting C.J.); and consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. 157(b); and venue being proper before this Court pursuant to 28 U.S.C. 1408 and 1409; and due and proper notice of the Motion having been provided, and it appearing that no other or further notice need be provided; and the Court having determined that the relief requested in the Motion being in the best interests of the Debtor, its creditors, and all parties in interest; and the Court having determined that the legal and factual bases set forth in the Motion establish just

Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Motion. The last four digits of the Debtors federal tax identification number are 3507.

cause for the relief granted herein; and upon all of the proceedings had before the Court and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED, that the Motion is granted to the extent provided herein; and it further ORDERED, that pursuant to Bankruptcy Rule 9006(b), the period within which the Debtor may seek to remove Civil Actions pending on the Petition Date, pursuant to 28 U.S.C. 1452 and Bankruptcy Rule 9027(a)(2), is hereby extended to the later of (a) 180 days after the Petition Date (i.e., August 20, 2011) or (b) 30 days after the entry of an order terminating the automatic stay with respect to the particular Civil Action sought to be removed; and it is further ORDERED, that entry of this Order is without prejudice to (a) any position the Debtor may take regarding whether section 362 of the Bankruptcy Code applies to stay any Civil Actions and (b) the Debtors right to seek from this Court further extensions of the period within which the Debtor may file notices of removal under Bankruptcy Rule 9027(a). Dated: May ___, 2011 New York, New York

HONORABLE SEAN H. LANE UNITED STATES BANKRUPTCY JUDGE