19‐1626‐cv (L)
Leeber Realty LLC v. Trustco Bank



                                  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 COURTʹS 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 ʺSUMMARY ORDERʺ). A
PARTY CITING 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 19th day of December, two thousand nineteen.

PRESENT:            BARRINGTON D. PARKER,
                    DENNY CHIN,
                               Circuit Judges,
                    DENISE COTE,
                               District Judge.*
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

LEEBER REALTY LLC, BERNARD COHEN,
               Plaintiffs‐Counter‐Defendants‐
               Appellees‐Cross‐Appellants,

                                     v.                                              19‐1626‐cv;
                                                                                     19‐1692‐cv
TRUSTCO BANK,
                              Defendant‐Counter‐Claimant‐
                              Appellant‐Cross‐Appellee.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x



          *   Judge Denise Cote, of the United States District Court for the Southern District of
New York, sitting by designation.
FOR PLAINTIFFS‐COUNTER‐                   MICHAEL A. FREEMAN, Greenberg Freeman
DEFENDANTS‐APPELLEES‐                     LLP, New York, New York.
CROSS‐APPELLANTS:

FOR DEFENDANT‐COUNTER‐                    PETER A. PASTORE, McNamee Lochner P.C.
CLAIMANT‐APPELLANT‐                       Albany, New York.
CROSS‐APPELLEE:

              Appeal from the United States District Court for the Southern District of

New York (Karas, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiffs‐counter‐defendants‐appellees‐cross‐appellants Leeber Realty

LLC and Bernard Cohen (together, ʺLeeberʺ) and defendant‐counter‐claimant‐

appellant‐cross‐appellee Trustco Bank (ʺTrustcoʺ) cross‐appeal from an amended

judgment entered July 23, 2019, awarding Leeber $953,461.12 in damages, attorneysʹ

fees, costs, and pre‐judgment interest, and setting the post‐judgment interest rate at

2.41% per annum. The amended judgment was identical to a judgment entered May 1,

2019, except that it lowered the post‐judgment interest rate from 8% to 2.41% per

annum. In an opinion and order entered June 4, 2018 (the ʺJune 4 Orderʺ), the district

court granted summary judgment in favor of Leeber, holding that Trustco breached its

commercial lease agreement with Leeber. On appeal, Trustco principally argues that

the district court erred in granting summary judgment against it, and Leeber principally




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challenges the amount of damages awarded. We assume the partiesʹ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

              In its April 21, 2017 complaint, Leeber sued for damages, alleging that

Trustco breached its lease. On October 10, 2017, Trustco filed its answer and

counterclaim, alleging that Leeber failed to make necessary repairs on the premises and

that Trustco was constructively evicted. Leeber moved for summary judgment. In its

June 4 Order, the district court granted in part and denied in part Leeberʹs motion.

              On July 17, 2018, Trustco moved to vacate the June 4 Order pursuant to

Rule 60(b)(1), (4), (6) and to dismiss for lack of subject matter jurisdiction under Rule

12(h)(3). By opinion and order entered February 8, 2019, the district court denied

Trustcoʹs motion to vacate the June 4 Order.

              The original judgment, with a post‐judgment interest rate of 8%, was

entered on May 1, 2019. On May 6, 2019, Trustco moved to amend the judgment to

modify the post‐judgment interest rate from the contractual rate of 8% to the applicable

federal rate under 28 U.S.C. § 1961, which, at the time, was 2.41%. Before the district

court ruled on the motion, on May 31, 2019, Trustco filed its notice of appeal from the

original judgment. Leeber filed a notice of cross‐appeal on June 6, 2019.

              On July 18, 2019, the district court issued an order granting Trustco relief

under Rule 60(b)(1) and holding that the post‐judgment interest rate should accrue at

the federal statutory rate, rather than the contractual rate of 8%. The amended



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judgment was entered July 23, 2019. Trustco filed an amended notice of appeal on July

24, 2019. Leeber filed an amended notice of cross‐appeal on July 31, 2019.

                                    BACKGROUND

              The following facts are not in dispute. Leeber and Trustco entered a 20‐

year commercial lease on December 31, 2003, pursuant to which Leeber leased premises

to Trustco to operate a bank branch. The building is served by a single sewer line that

connects to a system owned by the local municipality.

              On March 27, 2017, Trustco sent a letter notifying Leeber that ʺsince in or

about 2009ʺ Trustco experienced ʺhazardous environmental conditionsʺ at the premises

and that, due to Leeberʹs failure to remedy these conditions, there was a ʺconstructive

evictionʺ from the premises. J. Appʹx at 313. The identified ʺhazardous environmental

conditionsʺ were ʺmold and sewage backup.ʺ J. Appʹx at 313. Accordingly, Trustco

purported to terminate the lease on March 31, 2017. On April 4, 2017, Leeber notified

Trustco that it had defaulted under the lease. On April 18, 2017, Leeber sent Trustco a

written notice declaring an ʺEvent of Defaultʺ under the lease based on nonpayment of

rent and abandonment of the premises. J. Appʹx at 333‐34. Trustco has not paid any

rent since April 5, 2017.

              From January 2012 to March 2016, Trustco experienced problems with the

sewage facilities six times. Trustco called a plumber each time. Trustco did not inform

Leeber of any problem with the sewer line or that a plumber had been called. On



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December 18, 2016, a Trustco employee contacted Leeber about a toilet backup. In

response, Leeber called a plumber and later confirmed with the Trustco employee that

the issue had been resolved. At deposition, the Trustco employee testified that he was

unaware of any communications with Leeber regarding sewage problems at the

premises, besides the December 18, 2016 conversation.

              Because Leeber was unable to pay its mortgage on the property, on July

13, 2017, Flushing Bank commenced a foreclosure action. A Receiver was appointed in

the foreclosure action on March 23, 2018. On July 17, 2018, the Receiver filed his oath

and bond with the state court, and the same day, Leeber filed for Chapter 11

bankruptcy protection.

                                STANDARD OF REVIEW

              ʺWe review a district courtʹs decision on a motion for summary judgment

de novo, resolving all ambiguities and drawing all factual inferences in favor of the

non‐moving party.ʺ Mudge v. Zugalla, 

, 79 (2d Cir. 2019). ʺSummary

judgment is appropriate where there exists no genuine issue of material fact and, based

on the undisputed facts, the moving party is entitled to judgment as a matter of law.ʺ

Novella v. Westchester Cty., 

, 139 (2d Cir. 2011). We review the denial of

a Rule 60(b)(4) motion de novo. Burda Media, Inc. v. Viertel, 

, 298 (2d Cir.

2005).




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                                      DISCUSSION

              Trustco appeals the dismissal of its constructive eviction defense, the

order enforcing an accelerated rent provision in the commercial lease, and the denial of

its July 17, 2018, Rule 60(b)(4) motion claiming a lack of jurisdiction. Leeber cross‐

appeals the order denying accelerated rent for the five‐year option period and the

issuance of an amended judgment for lack of jurisdiction.

       A.     Constructive Eviction

              The district court properly granted summary judgment in favor of Leeber

on Trustcoʹs constructive eviction defense. Under New York law, ʺconstructive eviction

exists where, although there has been no physical expulsion or exclusion of the tenant,

the landlordʹs wrongful acts substantially and materially deprive the tenant of the

beneficial use and enjoyment of the premises.ʺ Barash v. Penn. Terminal Real Estate Corp.,

, 83 (1970). Here, even assuming the sewage problems created a hazardous

condition, a reasonable jury could only conclude that Trustco failed to comply with the

notice provisions in the lease requiring it to provide written notice to Leeber in the

event of ʺany environmental concernsʺ or any ʺdefects [in the premises] or in any

fixtures or equipment.ʺ J. Appʹx at 86, 101. The record shows that on the occasion when

Leeber was notified of a sewage problem, it acted promptly in calling a plumber. At

deposition, a Trustco employee admitted that he was not ʺaware of anyone at Trustco

who ha[d] sent a letter or written documentʺ to Leeber ʺconcerning any condition or



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event at the lease premises.ʺ J. Appʹx at 188. Accordingly, we hold that the district

court correctly granted summary judgment in Leeberʹs favor on the constructive

eviction defense.1

       B.     Rent Acceleration

              The district court properly granted accelerated rent to Leeber based on the

valid and enforceable liquidated damages provision in the lease.2 Under New York

law, ʺ[a] contractual provision fixing damages in the event of breach will be sustained if

the amount liquidated bears a reasonable proportion to the probable loss and the

amount of actual loss is incapable or difficult of precise estimation.ʺ Truck Rent–A–Ctr.,

Inc. v. Puritan Farms 2nd, Inc., 

, 425 (1977).

              Trustco argues that rent acceleration clauses are not enforceable where the

lease does not require the landlord to re‐rent the premises and apply the rent received

to the benefit of the tenant. The New York Court of Appeals, however, has already




1       Because we find ample evidence in the record supporting the district courtʹs decision to
grant summary judgment on the constructive eviction defense, we need not reach Trustcoʹs
other arguments relating to the scope of Leeberʹs duty to repair and the extent Trustco waived
its constructive eviction defense under New York law. Even assuming Leeber owed a duty to
repair the sewage facilities and Trustco had not waived its constructive eviction defense, a
reasonable jury could not conclude that Trustco provided Leeber the mandatory written notice,
as required in the commercial lease.
2       The commercial lease provides, in relevant part, that upon an event of default, Leeber
may terminate the lease and recover from Trustco ʺall damages incurred by reason of such
breach, including the cost of recovering the [] Premises plus the total of all Minimum Annual
Rent, Additional Rent and all other charges reserved in th[e] Lease payable over the remainder
of the stated Lease Term discounted to net present value utilizing a 6% discount rate.ʺ J. Appʹx
at 109.

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rejected this argument on the ground that a landlord is not required to mitigate

damages in the event a tenant breaches its lease agreement. See 172 Van Duzer Realty

Corp. v. Globe Alumni Student Assistance Assʹn, Inc., 

, 535 (2014) (ʺonce a

tenant abandons the property prior to expiration of the lease, a landlord is within its

rights under New York law to do nothing and collect the full rent due under the leaseʺ

(alterations and internal quotation marks omitted)).

              The district court denied acceleration with respect to the five‐year

extension of the lease that was part of a prior settlement of a prior dispute. Leeber

contends this was error. We agree with the district court that the acceleration

provisionʹs reference to ʺthe stated Lease Termʺ unambiguously refers to the twenty‐

year term set forth in Section 1.01 of the lease. The five‐year extension was a separate

ʺOption Termʺ and not part of the ʺLease Term.ʺ The parties unambiguously

ʺexercise[d] its first option to extend that lease and renew that lease for an additional

five‐year periodʺ in an open court stipulation settlement. J. Appʹx at 494. That

additional five‐year period was an ʺOption Term,ʺ and not part of the ʺLease Termʺ as

clearly defined in the lease. Under New York law, an ʺopen courtʺ stipulation is a

contract enforceable according to its terms, absent a showing of ʺfraud, collusion,

mistake or accident.ʺ Hallock v. State, 

, 230 (1984); see also Corona Fuel Corp.

v. Nayci, 

, 173 (2d Depʹt 2016). The district court properly excluded

Leeberʹs counselʹs declaration contradicting the unambiguous terms of the ʺopen courtʺ



                                              8
stipulation as inadmissible parol evidence. See Schron v. Troutman Sanders LLP, 

, 436 (2013) (ʺParol evidence ‐‐ evidence outside the four corners of the

document ‐‐ is admissible only if a court finds an ambiguity in the contract.ʺ).

       C.     Joinder of Indispensable Parties

              Moreover, the district court did not err in denying Trustcoʹs motion under

Rule 60(b)(4). Trustco argues that the district court erred in not dismissing the case for

lack of jurisdiction because Flushing Bank and the Receiver were indispensable parties

whose inclusion in the case would have destroyed diversity jurisdiction. A ʺcourt will

be deemed to have plainly usurped jurisdiction only when there is a ʹtotal want of

jurisdictionʹ and no arguable basis on which it could have rested a finding that it had

jurisdiction.ʺ Nemaizer v. Baker, 

, 65 (2d Cir. 1986) (quoting Lubben v. Selective

Serv. Sys. Local Bd. No. 27, 

, 649 (1st Cir. 1972)).

              The district court properly exercised its jurisdiction having found that the

Receiver and Flushing Bank were not indispensable parties. As noted by the district

court, the Receiver was not authorized to collect rents due until he filed his oath and

bond on July 17, 2018, well after this suit was commenced in April 2017. Furthermore,

Flushing Bank was also not an indispensable party because it did not take affirmative

steps to enforce its right to collect rent under the lease until it commenced a foreclosure

action in July 2017. Indeed, Trustco failed to raise any jurisdictional challenge before

the district court issued its summary judgment decision on June 4, 2018. Because the



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mortgage agreement between Leeber and Flushing Bank confirmed Leeberʹs residual

interest in collecting rent, even in the event of default, the district court properly held

that at the outset of the litigation in April 2017 and at time of its June 4, 2018 decision,

the Receiver and Flushing Bank were not indispensable parties.3

        D.      Amended Judgment

                The district court properly exercised its jurisdiction in issuing an amended

judgment after the parties filed notices of appeal. While it is true that the filing of a

notice of appeal typically ʺdivests the district court of its control over those aspects of

the case involved in the appeal,ʺ Griggs v. Provident Consumer Disc. Co., 

, 58

(1982) (per curiam), a notice of appeal does not divest a district court of jurisdiction to

decide a timely‐filed motion pursuant to Federal Rule of Civil Procedure 60. Under

Federal Rule of Appellate Procedure (4)(a)(4)(B)(i), a notice of appeal filed while a Rule

60(b) motion is outstanding in the district court ʺbecomes effectiveʺ only once that

motion is resolved. Fed. R. App. P. 4(a)(4)(B)(i); see also Fed. R. App. P. 4(a)(4) advisory

committeeʹs note to 1993 amendment (ʺA notice [of appeal] filed . . . after the filing of a

motion [such as a Rule 60(b) motion] but before disposition of the motion is, in effect,




3       For substantially the same reasons as discussed above and the reasons reviewed by the district
court, we also agree that Leeber had standing at the outset of this litigation in April 2017 to pursue rent
payments from Trustco. See Comer v. Cisneros, 

, 791 (2d Cir. 1994) (ʺstanding is measured as of
the time the suit is broughtʺ).

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suspended until the motion is disposed of . . . ʺ). However, an amended notice of

appeal is required for this Court to have jurisdiction to review the resolved motion.

             Here, on May 6, 2019, Trustco timely filed its letter motion seeking an

amended judgment, which the district court construed as a Rule 60 motion. Trustco

then filed a notice of appeal on May 31. After the district court issued an amended

judgment on July 23, Trustco filed an amended notice of appeal on July 24. The

amended judgment and the district courtʹs Rule 60(b)(1) decision adjusting the post‐

judgment interest rate are properly before this Court. For the reasons articulated in the

district courtʹs well‐reasoned July 18, 2019 order, we affirm the amended judgment.

                                        *   *    *

             We have reviewed the partiesʹ remaining arguments and conclude they

are without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                         FOR THE COURT:
                                         Catherine O=Hagan Wolfe, Clerk of Court




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