In Re 461 7th Avenue Market, Inc. ( 2021 )


Menu:
  •      20-3555
    In Re 461 7th Avenue Market, Inc.
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
    SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
    FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
    CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
    EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
    “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
    ANY PARTY NOT REPRESENTED BY COUNSEL.
    1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
    2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
    3   on the 15th day of December, two thousand twenty-one.
    4   PRESENT:
    5              GERARD E. LYNCH,
    6              SUSAN L. CARNEY,
    7              RICHARD J. SULLIVAN,
    8                        Circuit Judges.
    9   _________________________________________
    10   IN RE: 461 7TH AVENUE MARKET, INC.,
    11                      Debtor,
    12   ****************************************
    13   461 7TH AVENUE MARKET, INC.,                                     No. 20-3555
    14                      Appellant,
    15                                v.
    16   DELSHAH 461 SEVENTH AVENUE, LLC,
    17              Appellee.
    18   _________________________________________
    19   FOR APPELLANT:                                       MICHAEL S. KIMM, Kimm Law Firm,
    20                                                        Englewood Cliffs, NJ.
    1   FOR APPELLEE:                                        WILLIAM F. SAVINO (Bernard Schenkler,
    2                                                        on the brief), Woods Oviatt Gilman, LLP,
    3                                                        Buffalo, NY.
    4          Appeal from an order of the United States District Court for the Southern District of
    5   New York (Halpern, J.).
    6          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
    7   ADJUDGED, AND DECREED that the order entered on October 2, 2020, is
    8   AFFIRMED.
    9          Appellant 461 7th Avenue Market, Inc. (“Market”), a debtor in bankruptcy
    10   proceedings, appeals from an order of the district court denying its request for a stay
    11   pending appeal of a bankruptcy court order converting its case from one under Chapter 11
    12   to one under Chapter 7 of the Bankruptcy Code. Appellee Delshah 461 Seventh Avenue,
    13   LLC (“Delshah”), Market’s former landlord and a creditor in the bankruptcy case, opposed
    14   the request for a stay. We assume the parties’ familiarity with the underlying facts, procedural
    15   history, and arguments on appeal, to which we refer only as necessary to explain our decision
    16   to affirm.
    17          The district court concluded that Market’s former management lacked standing to
    18   seek a stay on Market’s behalf because, upon conversion of the bankruptcy case to a Chapter
    19   7 proceeding and the appointment of a Chapter 7 trustee, the authority to request a stay and
    20   to prosecute an appeal vested in the trustee alone. In re 461 7th Avenue Market, Inc., 
    623 B.R. 21
       681, 689–91 (S.D.N.Y. 2020). At oral argument before our Court, counsel for both parties
    22   agreed that the issue of “standing” in this context is not a question of whether this Court has
    23   jurisdiction under Article III, but instead concerns authority under the Bankruptcy Code to
    24   litigate an appeal and related matters on behalf of the debtor following the appointment of a
    25   Chapter 7 trustee. See Martineau v. Wier, 
    934 F.3d 385
    , 391 (4th Cir. 2019) (explaining that
    26   whether the debtor “was legally entitled to pursue” certain tort claims on her own behalf
    27   “implicates not Article III standing doctrine, but rather the ‘real-party-in-interest’
    28   requirement”). Because the standing question here is not jurisdictional and the district
    2
    1   court’s order should clearly be affirmed on other grounds, we find it unnecessary to resolve
    2   the issue of who has authority to seek a stay on Market’s behalf.
    3           A court must consider four well-established factors before deciding whether to issue
    4   a stay pending appeal: “(1) whether the stay applicant has made a strong showing that he is
    5   likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a
    6   stay; (3) whether issuance of the stay will substantially injure the other parties interested in
    7   the proceeding; and (4) where the public interest lies.” In re World Trade Ctr. Disaster Site Litig.,
    8   
    503 F.3d 167
    , 170 (2d Cir. 2007) (quoting Hilton v. Braunskill, 
    481 U.S. 770
    , 776 (1987))
    9   (footnote omitted). The district court determined that Market had not made the required
    10   showing under this standard. In re 461, 623 B.R. at 691–96. We review the district court’s
    11   denial of a motion for a stay pending appeal for abuse of discretion, Pravin Banker Assocs.,
    12   Ltd. v. Banco Popular Del Peru, 
    109 F.3d 850
    , 856 (2d Cir. 1997), which entails either an error
    13   of law or a clearly erroneous factual determination, Picard v. Fairfield Greenwich Ltd., 
    762 F.3d 14
       199, 206 (2d Cir. 2014). On such review, we conclude that the district court did not abuse its
    15   discretion here.
    16           The district court correctly concluded that Market had not made a “strong showing”
    17   that it is likely to succeed on the merits of its appeal of the bankruptcy court’s conversion
    18   order. World Trade Ctr., 
    503 F.3d at 170
    . Specifically, Market failed to establish that the
    19   bankruptcy court erred in concluding that there was “substantial or continuing loss to a
    20   diminution of the estate and the absence of a reasonable likelihood of rehabilitation,” which
    21   justified converting the case from Chapter 11 to Chapter 7 under 
    11 U.S.C. § 1112
    (b)(4)(A).
    22   Appellant’s App’x at 4462, 4469–70. Market’s lease required it to comply with municipal
    23   requirements, 1 including those that “relate to structural changes or requirements,”
    24   Appellant’s App’x at 420, and the New York City Department of Buildings determined that
    25   several major alterations to the leased premises were needed to achieve compliance with the
    26   City’s building code. The bankruptcy court’s finding that Market lacked the funds to make
    1Market raises various arguments challenging its obligations under the lease, but these arguments are
    forfeited because Market failed to raise them in opposition to Delshah’s motion to convert. See United States v.
    Wasylyshyn, 
    979 F.3d 165
    , 172 (2d Cir. 2020).
    3
    1   the required alterations was not clearly erroneous. Because there was “no evidence at all”
    2   that Market could cure the building code violations, the bankruptcy court likewise did not
    3   clearly err in finding that Market was “incapable of assuming the lease and therefore
    4   incapable of proposing a Chapter 11 plan [of] reorganization.” Appellant’s App’x at
    5   4460−62.
    6          Market insists that the Department of Buildings’ advisement was not final and that
    7   Delshah refused to consent to the alterations. But Market makes no showing that it would
    8   qualify for an exemption to the requirements, that the Department of Buildings’ decision
    9   would not withstand review, or that Market had the funds to undertake the required
    10   alterations and cure its default on the lease. Thus, given Market’s inability to assume the lease
    11   and prevent “substantial or continuing loss to or diminution of the estate” or otherwise
    12   show “a reasonable likelihood of rehabilitation,” 
    11 U.S.C. § 1112
    (b)(4)(A), the bankruptcy
    13   court did not err in finding cause for converting Market’s bankruptcy to a Chapter 7 case. See
    14   In re C-TC 9th Ave. P’ship, 
    113 F.3d 1304
    , 1311 (2d Cir. 1997) (observing that the 
    11 U.S.C. § 15
       1112(b) list is “illustrative” of circumstances that constitute cause for conversion or
    16   dismissal).
    17          Nor did the bankruptcy court violate Market’s due process rights. Delshah’s motion
    18   to convert the case to Chapter 7 noticed a hearing for July 9, 2020, and the bankruptcy court
    19   held the hearing on that date. As there was no real factual dispute as to whether Market had
    20   the financial ability to make the alterations necessary to assume the lease, there was no need
    21   for the bankruptcy court to hold an evidentiary hearing. See id. at 1312 (“When the record is
    22   sufficiently well developed to allow the bankruptcy court to draw the necessary inferences to
    23   dismiss [or convert] a Chapter 11 case for cause, the bankruptcy court may do so” without
    24   an evidentiary hearing.); In re Tiana Queen Motel, Inc., 
    749 F.2d 146
    , 150 (2d Cir. 1984)
    25   (rejecting “the proposition that § 1112(b) requires the holding of a full evidentiary hearing
    26   prior to the entry of a conversion order”). The bankruptcy court gave Market multiple
    27   opportunities to demonstrate that it was able to make the required alterations, but it did not
    28   do so. See Appellant’s App’x at 4451 (“I cannot get a straight answer from the debtor . . . on
    29   this point. The debtor made no written assertion that it could cure the default. And I’m not
    4
    1   getting one now.”). The legal issues before the bankruptcy court were fully briefed and
    2   Market provides no basis to conclude that the bankruptcy court denied it a meaningful
    3   opportunity to be heard. See Mathews v. Eldridge, 
    424 U.S. 319
    , 333 (1976).
    4          The district court therefore properly concluded that Market failed to show a
    5   likelihood of success on the merits of its appeal of the bankruptcy court order. Market
    6   likewise failed to establish that irreparable harm would result from the denial of the chance
    7   to propose a reorganization plan when there is no indication in the record that Market could,
    8   in fact, reorganize. See In re 461, 623 B.R. at 694–95. Nor does Market account for the harm
    9   imposed on creditors and the public interest should the bankruptcy proceedings be further
    10   prolonged. Id. at 695–96.
    11          For all these reasons, we conclude that the district court acted well within the bounds
    12   of its discretion in denying Market’s request for a stay.
    13                                                * * *
    14          We have considered Market’s remaining arguments and find in them no basis for
    15   reversal. The order of the district court is therefore AFFIRMED.
    16                                                        FOR THE COURT:
    17                                                        Catherine O’Hagan Wolfe, Clerk of Court
    5