In Re Igor Y. Melnik

19-2367 (L)
In re Igor Y. Melnik
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 ASUMMARY ORDER@). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City
of New York, on the 17th day of December, two thousand twenty-one.
PRESENT:
GERARD E. LYNCH,
RICHARD J. SULLIVAN,
STEVEN J. MENASHI,
Circuit Judges.
_________________________________________________________________________________
In re: Igor Y. Melnik,
Debtor.
_____________________________________
Deepika Reddy, Pratap Reddy,
Appellants,
v. Nos. 19-2367 (L),
20-1634 (Con)
Igor Y. Melnik,
Debtor-Appellee.
_____________________________________
FOR APPELLANTS: Deepika and Pratap Reddy, pro se,
Austin, TX.
FOR DEBTOR-APPELLEE: Mary Lannon Fangio, Whitelaw &
Fangio, Syracuse, NY.
Appeals from a judgment of the United States District Court for the Northern
District of New York (Suddaby, C.J.) and an order of the United States Bankruptcy
Court for the Northern District of New York (Davis, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court and order of the bankruptcy
court are AFFIRMED.
This case arises out of an adversary proceeding brought by appellants Deepika
and Pratap Reddy (“the Reddys”) in the Chapter 7 bankruptcy of Igor Melnik, to
whom the Reddys sold their Syracuse, New York-based dental practice. In the lead
appeal, the Reddys, proceeding pro se, challenge the district court’s affirmance of the
bankruptcy court’s dismissal of their adversary proceeding and discharge of the debt
owed to them by Melnik. In the consolidated appeal, the Reddys appeal the
bankruptcy court’s order denying their motion for reconsideration. 1
1 The consolidated appeal was certified for immediate appeal to this Court under 28 U.S.C.
§ 158(d)(2)(A)(iii).
2
We review the district court’s order here as if we were reviewing the
bankruptcy court’s judgment directly. See In re Jackson, 593 F.3d 171, 176 (2d Cir. 2010)
(“[A]n order of the district court functioning in its capacity as an appellate court in a
bankruptcy case is subject to plenary review.”). In so doing, we “accept[] the
bankruptcy court’s factual findings unless they are clearly erroneous, and review[] its
conclusions of law de novo.” Id.In the lead appeal, we affirm for substantially the reasons stated by the district
court in its July 2, 2019 decision. Although the Reddys contend that Melnik
defrauded them into selling him their dental practice and financing the sale, the
bankruptcy court did not clearly err in holding that Melnik lacked the requisite intent
to deceive the Reddys and that the Reddys did not rely on his alleged
misrepresentation – i.e., that he was still married to his dental hygienist – when they
agreed to sell him the practice. The court also reasonably determined that the
allegedly false statements made about the financing for the sale were made by a third
party, not Melnik. Additionally, the Reddys were unharmed by Melnik’s allegedly
false statements concerning his attempts to resell the dental practice, made in an effort
to renegotiate repayment terms, since the Reddys never agreed to reduce the debt
obligation.
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As for the consolidated appeal, we agree with the bankruptcy court that the
Reddys’ motion for reconsideration under Rule 60(b)(1) – which was filed nearly one
year after the bankruptcy court’s judgment – was untimely because it was not
brought within the fourteen-day window to appeal under Federal Rule of Bankruptcy
Procedure 8002(a)(1). See In re 310 Assocs., 346 F.3d 31, 35 (2d Cir. 2003) (holding that
a Rule 60(b)(1) motion seeking correction of a court’s mistakes must be brought
within the deadline for a direct appeal). But even if we were to consider that motion
on the merits, the Reddys have not demonstrated clear error in the bankruptcy court’s
factual findings. See In the Matter of Motors Liquidation Co., 829 F.3d 135, 158 (2d Cir.
2016). And because they did not object contemporaneously to the bankruptcy court’s
evidentiary rulings, we review those rulings only for plain error, which the Reddys
have not established. See Caruolo v. John Crane, Inc., 226 F.3d 46, 55 (2d Cir. 2000).
Nor did the bankruptcy court err in rejecting the Reddys’ motion to vacate
based on their assertion that their former attorney, Gilles Abitbol, fraudulently
represented that he was lawfully present in the United States. 2 Federal Rule of Civil
2It is unnecessary for us to make any findings regarding Abitbol’s immigration status
because we find no basis for reversing the bankruptcy court’s judgment even if the
Reddys’ allegations on this subject are accurate. We note, however, that we are
unaware of any court or government agency findings regarding Abitbol’s
immigration status, and that previous attempts by Dr. Reddy to bring claims against
Abitbol based on his immigration status were unsuccessful. See, e.g., Reddy v. Abitbol,
4
Procedure 60(b)(2) requires a showing of “newly discovered evidence,” and the
record is clear that the Reddys knew of Abitbol’s immigration status long before the
bankruptcy court dismissed their adversary complaint in September 2018. In fact,
Deepika Reddy testified about Abitbol’s immigration status during her deposition in
connection with the adversary proceeding on December 20, 2017. See Mirlis v. Greer,
952 F.3d 36, 50 (2d Cir. 2020) (explaining that reconsideration under Rule 60(b)(2) is
unavailable where “the evidence [is] merely cumulative”) (quoting United States v.
Int’l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001)).
Similarly, Rule 60(b)(3), which allows for the reopening of a judgment based
on “fraud . . . by an opposing party,” is inapplicable since even the Reddys concede
that the opposing party, Melnik, had nothing to do with Abitbol’s alleged fraud. The
Reddys’ reliance on United States v. Throckmorton is likewise misplaced because that
case, in setting forth the circumstances under which attorney fraud permits relief
from judgment, requires that the attorney “fraudulently . . . assume[d] to represent a
party and connive[d] at his defeat.” 98 U.S. 61, 66 (1878) (emphasis added). The Reddys
No. 5:19-cv-1493, 2020 WL 1526937, at *3 (N.D.N.Y. Mar. 31, 2020) (dismissing
complaint as frivolous because “Plaintiff has no legal basis to claim that Defendant
Gilles Abitbol’s representation of her, or any other party, was ‘unauthorized’ or
invalid because of his alleged immigration status.”).
5
do not allege that Abitbol connived to bring about their defeat – in the bankruptcy
court or anywhere else.
Finally, the Reddys argue that they are entitled to relief under Rule 60(b)(6),
which permits a court to revisit a final judgment for “any . . . reason that justifies
relief.” We have held, however, that relief under Rule 60(b)(6) requires
“extraordinary circumstances” – and the circumstances presented here are far from
extraordinary. Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012) (quoting Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988)). Again, Melnik was unaware
of Abitbol’s efforts to conceal his immigration status. More importantly, the Reddys
have not demonstrated that Abitbol’s advice to them was deficient or that his
immigration status had any impact whatsoever on the proceeding held in the
bankruptcy court. To the extent that the Reddys were harmed by Abitbol’s purported
misrepresentations concerning his immigration status, their recourse lies in a separate
action against Abitbol, not a redo of their adversary proceedings in Melnik’s
bankruptcy.
6
We have considered the Reddys’ remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court and the
order of the bankruptcy court denying reconsideration.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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