Opinion
Civ. No. 03-1082 (DRD), Bankruptcy Case No. 02-38465 (DHS).
June 16, 2003
Richard L. Zucker, Esq., Lasser Hochman, L.L.C., Roseland, NJ, Attorney for Appellant Levin Properties L.P.
Nancy Isaacson, Esq., Michele Coleman Huresky, Esq., Goldstein, Lem Isaacson, P.C., Springfield, NJ, Attorneys for Debtor/Appellee Lens Lab of Paramus, Inc.
OPINION
Appellant Levin Properties ("Levin") has appealed from certain portions of a January 31, 2003 order of the Bankruptcy Court. Debtor/Appellant Lens Lab of Paramus, Inc. ("Lens Lab") moved to dismiss Levin's appeal on the grounds that the challenged portions of the order were all interlocutory and are therefore not appealable as a matter of right under 28 U.S.C. § 158(a). Lens Lab also argued that leave to appeal from the challenged portions of the order (also available under § 158 (a)) should not be granted. On April 23, 2003, this Court granted Lens Lab's motion in part and denied it in part. Levin now moves for reargument, contending that, to the extent that the Court granted Lens Lab's motion, its decision was based on mistaken assumptions regarding the facts and the proceedings in the Bankruptcy Court. For the reasons state below, Levin's motion for reargument will be denied.
BACKGROUND
Most of the essential background for the present motion is described in the opinion accompanying the April 23, 2003 order disposing of the motion to dismiss the appeal, and that opinion is incorporated here by reference.
Levin's principal point in support of its motion for reargument is that, contrary to the Court's assumption in its April 23 opinion, Lens Lab and Eyeglass Services Industries ("ESI"), the principal tenant in the premises at issue, have not entered into a new sublease, even though they have obtained the Bankruptcy Court's approval of such a lease. Levin also contends that this Court erred in regarding the Bankruptcy Court's decision on Levin's motion for immediate possession as a less than final determination of at least one of the legal arguments raised in connection with the motion — namely whether Levin was entitled to immediate possession because Lens Lab had failed promptly to assume its sublease with ESI, and because the lease was therefore deemed rejected under 11 U.S.C. § 365.
In response Lens Lab concedes that a new sublease has not been executed. It states that it now has a "month-to-month" subtenancy with ESI.
DISCUSSION AND CONCLUSION
Assuming without deciding that Levin's arguments are properly raised on a motion for reargument, none of them provides a sufficient basis for a modification of the April 23 decision on the motion to dismiss the appeal. Although the fact that Lens Lab and ESI have not entered into a new sublease might cast doubt upon one the grounds for that decision, the other grounds articulated in the April 23 opinion provide an adequate basis for the decision by themselves.
As the April 23 opinion made clear, the Bankruptcy Court's January 31, 2003 decision denying Levin's motion for immediate possession was by its terms without prejudice. Levin notes correctly that Bankruptcy Court did not "adjourn" consideration of Levin's motion but denied it. However the terms of the order and the record surrounding it make it clear that the Court left open the possibility of further proceedings regarding Levin's asserted right to the premises on a deemed rejection theory.
In ¶ 5 of its January 31 order, the Bankruptcy Court directed Lens Lab to file "a motion to approve a new sublease with ESI and/or a determination that ESI has waived the automatic rejection of the existing sublease." It is evident from the record of proceedings (indeed, from the very portions of that record that Levin quotes) that the Bankruptcy Court gave these instructions because of its view that the existence of a new sublease or ESI's waiver of any deemed rejection of the old sublease might have a significant effect on the ultimate resolution of Levin's rejection argument. Clearly the Bankruptcy Court anticipated that it might revisit the rejection issue after further developments, including at least those contemplated by ¶ 5 of its order. If Levin believes that Lens Lab has failed to act in conformity with that order, and if it believes that Lens Lab's failure to do so lends new weight to its rejection argument, its proper course is to renew its motion for immediate possession on rejection grounds before the Bankruptcy Court, not to attempt an appeal of a decision that on its face does not represent a final determination by the Bankruptcy Court of the legal claim at issue.
During the Bankruptcy Court proceedings, Judge Steckroth made the following statement, which Levin quotes:
I'm not saying [the sublease] is not deemed rejected. I'm giving them an opportunity to, to, under section 105, I'm giving them an opportunity to provide a motion where there was a valid waiver of that obligation by their landlord, ESI, and/or whether they could enter — maybe there isn't a valid waiver, or they're gonna enter into a new lease.
In short, although the fact that Lens Lab and ESI have not entered into a new sublease may very well indicate that the rejection issue is not moot, it is nevertheless an issue that has yet to be decided finally by the Bankruptcy Court; and consequently the January 31 order denying Levin's motion without prejudice is not a final, appealable order.
For the reasons stated above. Levin's motion for reargument with respect to this Court's April 23, 2003 decision on Lens Lab's motion to dismiss the appeal will be denied. An appropriate order will be entered.