In Re: PBS Foods, LLC

Filing 22

MEMORANDUM OPINION: For the reasons stated above, the bankruptcy court's orders granting the 9019 Motion and denying the 9023 and 9024 Motions are affirmed in all respects. (Signed by Judge Lewis A. Kaplan on 3/28/2017) Filed In Associated Cases: 1:15-cv-04967-LAK, 1:16-cv-03272-LAK(cla)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------x
In re
PBS FOODS, LLC,
d/b/a Payard Patisserie & Bistro,
Debtor.
------------------------------------------x
YANN GERON, Chapter 7 Trustee,
Plaintiff-Appellee,

-against-

15-cv-4967 (LAK)
16-cv-3272 (LAK)

HOLDING CAPITAL GROUP, INC., et ano.,

[Case No. 09-15629 (JLG)]
[Adv. Proc. No. 11-2717 (JLG)]

Defendants-Appellees,

-and-

1032-1034 LEX. AVE., LTD.,
Creditor-Appellant.
------------------------------------------x

MEMORANDUM OPINION

Appearances:

Avrom R. Vann
AVROM R. VANN, P.C.
M. David Graubard
KERA & GRAUBARD
Attorneys for Creditor-Appellant

2
Caroline A. Morgan
Nicole N. Santucci
FOX ROTHSCHILD LLP
Attorneys for Plaintiff-Appellee
Yann Geron, Chapter 7 Trustee

John Ignatius O’Neill
John A. Risi
BLEAKLEY PLATT & SCHM IDT , LLP
Attorneys for Defendants-Appellees

LEWIS A. KAPLAN, District Judge.
These appeals and the bankruptcy court litigation from which they arise are rooted
in a landlord-tenant relationship, through companies which they owned in whole or in part, between
Steven Kirschenbaum and François Payard.

Mr. Kirschenbaum is the owner of the Lexington

Avenue premises on Manhattan’s Upper East Side in which Mr. Payard until 2009 operated a wellknown restaurant, patisserie, and bakery.1 The considerable ill will between these protagonists may
be a factor in why this dispute over what appears to be a relatively small amount of money has taken
so long and generated so much acrimony.
As two able bankruptcy judges have rendered three written opinions and made
pertinent findings from the bench on the matters that concern us here, it is unnecessary for me to
cover the events below in complete detail. It suffices for me to touch upon those of the highlights
that inform my decision.

1

Mr. Payard reportedly was and remains associated with various other food businesses.

3
Facts
PBS’s Demise
The Payard Upper East Side operation was owned by PBS Foods, LLC (the “Debtor”
or “PBS”), which operated under the name Payard Patisserie and Bistro. PBS was wholly owned
by Mr. Payard. The Upper East Side business occupied premises owned by 1032-1034 Lex. Ave.,
Ltd. (the “Landlord”), Mr. Kirschenbaum’s company.
In February 2009, The New York Times reported that the New York City Department
of Health had closed down the Payard Patisserie and Bistro.2 The record does not reveal whether
the bistro later reopened. In any case, however, PBS called it quits at the end of June 2009 and shut
down permanently. Although the cause reportedly was a result of the economic downturn,3 the
Trustee alleged in one of the adversary proceedings discussed below that the business closed in
consequence of a doubling of its rent as of January 1, 2009 and “an ongoing dispute with its
landlord.”4

2

Glenn Collins, Payard Shut By Health Department, N.Y. TIMES, Feb. 18, 2009, available
at https://dinersjournal.blogs.nytimes.com/2009/02/18/payard-shut-by-health-department
(last visited Feb. 14, 2017).
3

Christine Haughney, OPEN AND SHUT; Chronicle of Changing City, N.Y. TIMES, July 5,
2009, available at http://www.nytimes.com/2009/07/05/nyregion/05open.html (last visited
Feb. 14, 2017).
4

These appeals are from orders in Geron v. Holding Capital Group, Inc., et ano., 11-ap-2717
(JLG), so all docket item numbers are to the docket sheet for that proceeding except where
otherwise indicated. References to docket item numbers in the bankruptcy case, 09-bk15629 (JLG), are preceded by the letter P. There were, in addition, three other adversary
proceedings. References to docket items in those proceedings are preceded by the letter A
in the c ase of Geron v. FR Ventures, LLC, 11-ap-2609, by the letter B in the case of
Geron v. Payard Management, LLC, 11-ap-2610, and by the letter C in the case of Geron v.
Payard, 11-ap-2716 (JLG).

4
The Chapter 7 Proceeding
On September 17, 2009, PBS filed a petition for relief under Chapter 7 of the
Bankruptcy Code.5
The schedules showed in relevant part that PBS had cash on hand of about $122,000
and total assets of less than $200,000, not counting trademarks and images of unknown value
relating to “Payard.”6
The liability side was dismal.

An entity called FP Holdings, LLC (“Holdings”)

asserted a claim in excess of $726,000 allegedly secured by all of PBS assets. Unsecured nonpriority claims totaled a little over $498,000 of which $360,000 was claimed by the Landlord.7 It
appears that the size of the Landlord’s claim increased later as a result of a judgment. It in any case
is undisputed that the Landlord overwhelmingly is the largest creditor of the PBS estate.

The Adversary Proceedings
In September 2011, the Trustee commenced four adversary proceedings, two of
which are relevant here.

The Trustee’s allegation is at DI P28 ¶ 10, which is the complaint in the proceeding against
Management.
5

DI P1.
6

DI P11.
7

Id.

5
The Present Case
Geron v. Holding Capital Group, Inc., the present case, was an action against
Holding Capital Group, Inc. (“HCG”) and Holdings. The complaint contained claims for avoidance
and recovery of certain transfers allegedly made to HCG and Holdings, disallowance of all claims
of HCG and Holdings under Bankruptcy Code § 502(d), and—most significantly for these
appeals—a claim against Holdings alone to recover for alleged “unjust enrichment.”
Mr. Payard and Holdings, which was wholly owned by HCG, jointly owned an
entity called Payard Management, LLC (“Management”).

The unjust enrichment claim—Count

Eight of the complaint—rested upon a written agreement dated May 31, 2006 between PBS and
Management (the “Licensing Agreement”) pursuant to which PBS transferred to Management
exclusive worldwide rights to license Payard’s trademarks and images. The complaint alleged that
the transfer had been made without consideration, that Management had received fees from its sublicenses of about $20,000 per month, and that the Trustee was entitled to recovery from Holdings.
The Trustee’s sole theory of recovery was that Holdings had been a part owner of Management and
thus must have benefitted from the license fees paid to Management. The complaint did not assert
any claim that the Trustee was entitled to pierce the corporate veil between Management and
Holdings.8

The Case Against Management
The other relevant proceeding was Geron v. Payard Management, LLC, which
asserted only two claims. The first sought to avoid and recover an allegedly preferential transfer of

8

Compl. [DI 1] ¶¶ 72-81.

6
about $129,000 by the Debtor to Management.

The second sought to disallow any claims

Management might file against the estate unless the transfer were returned.9

Significantly, the

Trustee asserted no claim against Management (a) based on the Licensing Agreement by which
Debtor gratuitously transferred to Management worldwide licensing rights or (b) to recover the
license fees allegedly received by Management as a result of sub-licenses it granted thereunder. In
due course, this and two other related cases were settled by a single agreement dated June 7, 2012,10
over the Landlord’s objection.11
The order approving that settlement was entered on September 13, 2012. Although
the Landlord did not appeal from the approval of that settlement, it is noteworthy that its papers in
opposition to the settlement, which were filed on June 27, 2012, asserted that the income generated
by the Licensing Agreement was about $20,000 per month and thus at least $1.2 million over five
years.12

The Settlement of the Present Adversary Proceeding
On December 13, 2013, the Trustee entered into a settlement agreement with HCG
and Holdings to resolve this adversary proceeding. In substance, the settlement called for (a) HCG
and Holdings to make a one-time payment of $105,000 to the Trustee, (b) Holdings to waive its

9

DI P28.
10

DI B14-1.
11

DI B26.
12

DI P33 ¶¶ 12-15 (Landlord cited the Trustee as the source of that information).

7
unsecured claim of $726,131 against the estate, and (c) HCG and Holdings to waive their claims
under Section 502(h) of the Bankruptcy Code, in full satisfaction of any and all of the estate’s claims
against them.
On January 8, 2014, the Trustee moved for approval of the settlement pursuant to
Fed. R. Bankr. P. 9019 (the “9019 Motion”). On March 11, 2014, the court held a hearing on the
9019 Motion during which the Trustee argued that approval of the settlement would be in the best
interests of the estate and its creditors.

Although the Landlord had not filed any response or

opposition to the 9019 Motion, its counsel appeared at the hearing and told the court that his “gut
reaction” to the settlement was that it was “too low.”13 Counsel explained that he had not filed a
written response or objection because the Trustee had responded only recently to the Landlord’s
discovery requests and he needed more time to “digest the information . . . to see what position [he
and his client were] going to take.”14 The Landlord’s counsel requested an adjournment of the
hearing to permit them to do so. The Trustee did not oppose an adjournment but insisted that he had
responded to the Landlord’s discovery requests and that those responses had been in the Landlord’s
possession for at least two to three weeks at that point.
Ultimately, the court denied the Landlord’s request for an adjournment, went forward
with the hearing, and indicated that it would approve the settlement. The court, however, agreed to
hold the order approving the settlement for one week to permit the Landlord to make a “better offer”

13

Hr’g Tr. 4:17-18, Mar. 11, 2014 [DI 27].
14

Id. at 5:6-13.

8
to the Trustee.15 But no deal was reached within a week; instead, the Trustee treated the matter as
adjourned sine die while the parties discussed a potential resolution.
Over the next seven months, the Trustee and the Landlord engaged in settlement
negotiations. In the end, the Landlord offered principally to pay the Trustee $130,000 to purchase
the estate’s claims against HCG and Holdings. The Trustee, however, declined that offer and asked
the court to renew the hearing on the 9019 Motion.
This time the Landlord filed a written objection to the 9019 Motion.

During the

renewed hearing, the Landlord urged the court to deny the 9019 Motion. It argued first that the court
had an obligation to review the settlement in light of the Landlord’s offer. It contended also that the
Landlord was entitled to an evidentiary hearing on “whether or not [the settlement] me[t] the lower
end of the [range of] reasonableness.”1 6 The court rejected both arguments and granted the 9019
Motion, stating:
“The Trustee is an experienced trustee, he’s an experienced practitioner, he believes
this is the best deal even in light of [the Landlord’s] offer. I think that meets at least
the lowest standard of 9019 therefore I’m going to approve the settlement.”17

The 9023 Motion
On November 18, 2014, the Landlord filed a motion for reconsideration (the “9023

15

Id. at 7:13-17, 8:5-11.
16

Hr’g Tr. 13:25-14:1, Nov. 4, 2014.
17

Id. at 16:22-17:1.

9
Motion”) of the order approving the settlement. 1 8 In connection with the 9023 Motion, the Landlord
sought discovery from the Trustee related to the payment of license fees to Management or
Holdings. In response, the Trustee produced three documents that he had failed to produce in
response to two earlier discovery requests: (a) an August 2011 letter from François Payard to the
Trustee concerning a license agreement and a $150,000 payment of license fees to Management in
2007; (b) a January 5, 2007 license agreement between Management and Westin Chosun Seoul; and
(c) pages from the Debtor’s general ledger with handwritten notations concerning license fee
payments intended for Management that had been wired to the Debtor in error (collectively, the
“New Documents”).19
After a hearing, the court denied the 9023 Motion on the basis that none of the
alleged errors of law or fact identified by the Landlord provided grounds for relief.20

The First Appeal and the Subsequent 9024 Motion
On June 11, 2015, the Landlord filed a notice of appeal from the bankruptcy court’s
orders granting the 9019 Motion and denying the 9023 Motion.
While that appeal was pending in this Court, the Landlord moved in the bankruptcy

18

The motion was made pursuant to Fed. R. Civ. P. 59(e), which is made applicable to
bankruptcy proceedings under Fed. R. Bankr. P. 9023.
19

The handwritten notes explain that, on three occasions, “royalty” payments from “Korea”
mistakenly were wired to the Debtor’s account even though there were supposed to be paid
to Management. The notes reflect also that the Debtor transferred those mistaken payments
to Management. See DI 66-16.
20

DI 59.

10
court for relief from the 9019 approval order (the “9024 Motion”).21 The Landlord asserted two
grounds for relief: (1) newly discovered evidence—specifically, the New Documents—would have
altered the court’s decision to grant that motion, and (2) the newly discovered evidence revealed that
the Trustee misrepresented facts to the court during the November 4 hearing on the 9019 Motion.
Given that the 9024 Motion had the potential to moot the first appeal in this Court, I stayed that
appeal pending disposition of the motion.
On April 8, 2016, the bankruptcy court denied the 9024 Motion.22

The Second Appeal
Ten days later, the Landlord filed a second notice of appeal, this time from the
bankruptcy court’s order denying the 9024 Motion. In due course, I consolidated the two appeals
and held oral argument.

Discussion
I.

Appeals from the 9019 and 9023 Orders
Fed. R. Bankr. P. 8014(a), which is derived from Fed. R. App. P. 28,23 requires an

appellant’s opening brief to include, among other things, an argument section “which must contain

21

The motion was made pursuant to Fed. R. Civ. P. 60(b)(2), (3), and (6), which are
applicable to bankruptcy proceedings under Fed. R. Bankr. P. 9024.
22

DI 83.
23

In re Residential Capital, LLC, 552 B.R. 50, 62 n.9 (S.D.N.Y. 2015), appeal dismissed
(Mar. 9, 2016).

11
a succinct, clear, and accurate statement of the arguments made in the body of the brief . . . .”24 As
the Second Circuit repeatedly has held, “simply stating an issue does not constitute compliance with
Rule 28(a)[—and, by proxy, Rule 8014(a)]: an appellant . . . must state the issue and advance an
argument.”25

Accordingly, “[i]ssues not sufficiently argued in the briefs are considered

waived . . . .”26
Here, the Landlord failed to advance any argument in support of its appeals from the
order approving the HCG/Holdings settlement pursuant to Rule 9019 or from the order denying
reconsideration pursuant to Rule 9023.

Merely mentioning the orders in the “issues presented”

section of its brief, without more, does not suffice.27 Accordingly, I deem the Landlord’s appeals
from those orders waived for inadequate briefing and failure to comply with Rule 8014. In any case,
I have reviewed those rulings on the merits. Had the Landlord properly preserved contentions that
they were entered in error, I would affirm them substantially for the reasons given by the court
below.

24

Fed. R. Bankr. P. 8014(a)(8).
25

Frank v. United States, 78 F.3d 815, 833 (2d Cir. 1997) (emphasis in original), vacated on
other grounds, 521 U.S. 1114 (1997); see also, e.g., Norton v. Sam’s Club, 145 F.3d 114,
117 (2d Cir. 1998).
26

Norton, 145 F.3d at 117; see also In re Stephenson, No. 96-cv-558 (DC), 1996 WL 403087,
at *1 (S.D.N.Y. July 18, 1996) (failure to comply with Rule 8014 is grounds for dismissing
bankruptcy appeal).
27

Frank, 78 F.3d at 833 (deeming claim waived on appeal where cross-appellant merely
mentioned claim in “issues” section and referred court to arguments below).

12
II.

The Appeal from the 9024 Order
This Court reviews a bankruptcy court’s denial of a Rule 60(b) motion for abuse of

discretion.2 8 “A bankruptcy court exceeds its allowable discretion where its decision (1) rest[s] on
an error of law (such as application of the wrong legal principle) or a clearly erroneous factual
finding, or (2) cannot be located within the range of permissible decisions, even if it is not
necessarily the product of a legal error or a clearly erroneous factual finding.”29 “A motion for relief
from judgment is generally not favored and is properly granted only upon a showing of exceptional
circumstances.”30 “The burden of proof is on the party seeking relief from judgment,” in this case
the Landlord.31

A.

Rule 60(b)(2)
To obtain relief under Rule 60(b)(2),
“the movant must demonstrate that (1) the newly discovered evidence was of facts
that existed at the time of trial or other dispositive proceeding, (2) the movant must
have been justifiably ignorant of them despite due diligence, (3) the evidence must
be admissible and of such importance that it probably would have changed the

28

In re Olsen, No. 06-cv-4004 (RJS), 2008 WL 4298586, at *2 (S.D.N.Y. Sept. 19, 2008),
aff’d, 357 F. App’x 369 (2d Cir. 2009).
29

In re Smith, 507 F.3d 64, 73 (2d Cir. 2007) (internal quotation marks omitted) (quoting In
re Aquatic Dev. Grp., Inc., 352 F.3d 671, 678 (2d Cir. 2003)).
30

United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001); see also In re
AMR Corp., No. 16-cv-1970 (VEC), 2017 WL 946299, at *5 (S.D.N.Y. Mar. 9, 2017).
31

Int’l Bhd. of Teamsters, 247 F.3d at 391.

13
outcome, and (4) the evidence must not be merely cumulative or impeaching.”32
In the proceedings below, the Landlord argued essentially that the New Documents
proved that Management, an entity owned in part by Holdings, had received license fees in the
amount of $150,000 per year and that the claim asserted by the Trustee against Holdings in Count
Eight therefore was more valuable to the estate than the Trustee had represented at the Rule 9019
hearing. The Landlord contended that the bankruptcy court would not have approved the settlement
had the New Documents been before it and that relief therefore was warranted under Rule 60(b).
The bankruptcy court was not convinced. It concluded that the New Documents did
not “substantiate, let alone support, the allegations underlying Count Eight because they d[id] not
reflect the payment of license fees from any source to Holdings and provide[d] no support for the
Trustee’s veil piercing claims.”33 In other words, the bankruptcy court did not believe that the New
Documents were relevant to the HCG/Holdings settlement because the documents related to
payments to Management and thus did not implicate either Holdings or HCG. In the circumstances,
the bankruptcy court concluded that the judge who had approved the settlement would not likely
“have attached much, if any, significance to [the New Documents] had the Landlord offered them
in opposition to the Rule 9019 Motion.”3 4 Accordingly, the court held that the Landlord had not
established a basis for relief under Rule 60(b)(2) because it had failed to show that the New
Documents likely would have altered the outcome of the 9019 Motion.

32

Frankel v. ICD Holdings S.A., 939 F. Supp. 1124, 1127 (S.D.N.Y. 1996); see also Int’l Bhd.
of Teamsters, 247 F.3d at 392 (quoting Frankel, 939 F. Supp. at 1127).
33

In re PBS Foods, LLC, 549 B.R. 586, 598 (Bankr. S.D.N.Y. 2016).
34

Id. at 599.

14
On appeal, the Landlord no longer argues that the New Documents likely would have
changed the outcome of the 9019 Motion.

Rather it contends that it is entitled to relief under

Rule 60(b)(2) because the New Documents would have prompted it to pursue additional
discovery—specifically, discovery from Holdings about license fee payments it may have received
from Management. That argument fails for two reasons.
First, as the court below correctly noted, the Landlord had the opportunity to seek
discovery from Holdings in connection with the proposed settlement but elected not to do so—it
pursued limited discovery from the Trustee alone. It took no depositions of Holdings or HCG and
sought no documents from them. Although the Landlord contends that it was not until it received
the New Documents that it realized the need to pursue discovery from Holdings about its possible
receipt of license fee payments from Management, there is no merit to that contention. Not only was
the Landlord on notice of the allegations against Holdings in Count Eight by virtue of the Trustee’s
complaint, but it admitted that Management’s counsel provided it with information in
September 2012 concerning license fee payments Management had received in 2008 and 2009.
Moreover, the Landlord stated in papers in the Management adversary proceeding that
Management’s licensing agreement generated income of about $20,000 per month. In other words,
the Landlord was aware of Management’s receipt of license fee payments and thus of the possibility
that all or some of that money flowed through Management to Holdings well before it obtained the
New Documents. Why, then, would it have needed the New Documents to tell it that which it
already knew? Plainly, it would not have.
Second, the Landlord’s argument that it is entitled to relief under Rule 60(b)(2) on
the basis that the New Documents would have prompted it to pursue additional discovery ignores

15
an essential requirement of subsection (b)(2). 3 5 Relief under subsection (b)(2) may be obtained only
if the movant shows that the newly discovered evidence is “of such importance that it probably
would have changed the outcome” of the proceedings.36 That is to say, it is not enough that the
Landlord might have done things differently had it obtained the New Documents sooner. Rather,
the Landlord must prove that the New Documents likely would have resulted in a change in the
outcome of the 9019 Motion. The Landlord has not even attempted to show how it satisfied that
element.

Nor, in my view, could it.

As has been stated repeatedly, the license fee payments

reflected in the New Documents were made neither to Holdings nor HCG. They were made from
sub-licensees to Management, an entirely distinct corporate entity. Moreover, nothing in the New
Documents provides any support for the veil-piercing allegations in the adversary complaint. In the
circumstances, I am persuaded that the New Documents—which implicate neither Holdings nor
HCG—would not have changed the outcome of the 9019 Motion. Indeed, they were not even
material to it.
Accordingly, it cannot be said that the bankruptcy court abused its discretion in
holding that the Landlord failed to show a basis for relief under Rule 60(b)(2).

B.

Rule 60(b)(3)
A movant seeking relief under Rule 60(b)(3) “must demonstrate by clear and

convincing evidence that the adverse party engaged in fraud, misrepresentation, or other
35

Appellant’s Br. 27.
36

Int’l Bhd. of Teamsters, 247 F.3d at 392 (quoting Frankel, 939 F. Supp. at 1127).
The Landlord’s reliance on what Rule 60(b)(3) supposedly requires is misplaced.

16
misconduct,” and that “this conduct prevented [the movant] from fully and fairly presenting [its]
case.”37 A Rule 60(b)(3) motion “cannot serve as an attempt to relitigate the merits.”38
The Landlord argued below that it was entitled to relief under subsection (b)(3) on
two grounds: (1) the Trustee made a material misrepresentation during the Rule 9019 hearing when
he stated that no license fees had been paid because the New Documents showed that Management
had received license fees in 2007 from Westin Chosun; and (2) the Trustee committed “misconduct”
within the meaning of subsection (b)(3) by failing to produce the New Documents in connection
with the 9019 Motion.
The bankruptcy court found no merit to the Landlord’s contentions.

First, it

concluded that the Landlord had not presented any evidence, let alone clear and convincing
evidence, that the Trustee misstated facts regarding the license fees to the court. Read in context,
the court found, the Trustee “was not speaking to whether any license fee payments were made to
the Debtor, he was speaking to whether any license fees had been paid to Holdings, the defendant
in Count Eight.”39

Moreover, it found that nothing in the record supported the contention that

Holdings had received license fee payments from Management or anyone else. Second, while the
court acknowledged that even accidental failure to disclose or produce discovery could constitute
misconduct within the meaning of Rule 60(b)(3), it concluded that the Landlord had failed to show
that any misconduct substantially interfered with its ability to fully and fairly prepare for and defend
37

Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 286 F. Supp. 2d 309, 312 (S.D.N.Y. 2003)
(internal quotation marks omitted) (quoting Walther v. Maricopa Int’l Inv. Corp., No. 97cv-4816 (HB), 2002 WL 31521078, at *3 (S.D.N.Y. Nov. 12, 2002)).
38

Fleming v. N.Y. Univ., 865 F.2d 478, 484 (2d Cir. 1989).
39

PBS Foods, 549 B.R. at 603.

17
against the 9019 Motion.40
On appeal, the Landlord maintains that the Trustee committed misconduct by failing
to produce the New Documents in connection with the 9019 Motion and that the bankruptcy court
erred in holding that Rule 60(b)(3) requires a movant to show that it was prevented from fully and
fairly presenting its case by the alleged misconduct. According to the Landlord, once a movant
establishes that misconduct occurred, it is entitled to relief under subsection (b)(3) without regard
to whether the misconduct had any significant effect on its ability to put forward its position.
I disagree.

Even assuming that the Trustee committed misconduct within the

meaning of Rule 60(b)(3) by failing to produce the New Documents earlier, the Landlord’s
contention that that fact alone entitles it to relief runs contrary to decisions of numerous courts in
this Circuit. 4 1 The Landlord’s attempts to distinguish those cases, moreover, are unavailing. I am
persuaded that Rule 60(b)(3) requires a movant to show that the alleged misconduct undermined its
ability to fully and fairly litigate its case and that the Landlord did not make that showing.
The Landlord maintains also that the Trustee misrepresented facts regarding the
license fees to the bankruptcy court. As mentioned above, the bankruptcy court found that the
Trustee’s statement about license fee payments was directed to whether license fees had been paid
to Holdings, the defendant in this case, not the Debtor.42 While the Landlord may disagree with that
reading, it has offered nothing—nor do I find anything—to suggest that the bankruptcy court’s
40

Id. at 26.
41

See, e.g., Thomas v. City of N.Y., 293 F.R.D. 498, 503 (S.D.N.Y. 2013); Catskill Dev.,
L.L.C., 286 F. Supp. 2d at 312; Walther, 2002 WL 31521078, at *3; Chnapkova v. Koh, No.
88-cv-6144 (CMM), 1992 WL 203906, at *2 (S.D.N.Y. Aug. 7, 1992).
42

PBS Foods, 549 B.R. at 603.

18
finding was erroneous, let alone clearly erroneous.
In the circumstances, the bankruptcy court did not abuse its discretion in denying the
Landlord relief under Rule 60(b)(3).

C.

Rule 60(b)(6)
“Rule 60(b)(6) is unavailable if, as here, the motion is ‘premised on one of the

grounds for relief enumerated in clauses (b)(1) through (b)(5).’”43

Accordingly, the bankruptcy

court did not abuse its discretion in holding that the Landlord’s claim under this subsection failed.

Conclusion
For the reasons stated above, the bankruptcy court’s orders granting the 9019 Motion
and denying the 9023 and 9024 Motions are affirmed in all respects.
SO ORDERED.
Dated:

March 28, 2017

43

In re Bernard L. Madof f Inv. Sec., LLC, 489 F. App’x 519, 520 (2d Cir. 2012) (quoting
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 (1988)).