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IN RE BCE WEST, L.P.

BAP No. AZ-01-1017-RPRy. Bankruptcy Nos. 98-12547-ECF-CGC to 98-12570-ECF-CGC.

264 B.R. 578 (2001)

In re BCE WEST, L.P., et al., Debtors. Einstein/Noah Bagel Corp., Appellant, v. Gerald K. Smith, Plan Trustee, Appellee.

United States Bankruptcy Appellate Panel of the Ninth Circuit.

Filed July 16, 2001.

Attorney(s) appearing for the Case

Amarjeet S. Bhachu, Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, for Einstein/Noah Bagel Corp.

J. Henk Taylor, Lewis & Roca, L.L.P., Phoenix, AZ, for Gerald K. Smith, Trustee.

Before RUSSELL, PERRIS, and RYAN, Bankruptcy Judges.

OPINION

RUSSELL, Bankruptcy Judge.

The appellant filed an administrative claim against a chapter 111 debtor in possession ("DIP") from whom it had subleased office space. The basis for the claim was an alleged postpetition breach of the sublease by the DIP-sublessor for which liability was premised on § 365(d)(3) and § 503(b). After confirmation, the plan trustee objected to the claim and moved for summary judgment...

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