8 West 58th Street Hospitality, LLC

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
In re: Chapter 11
8 WEST 58TH STREET HOSPITALITY, LLC Case No. 14-11524 (SHL)
Debtor.
--------------------------------------------------------------x
MEMORANDUM OF DECISION AND ORDER
A P P E A R A N C E S :
GOLDBERG WEPRIN FINKEL GOLDSTEIN LLP
Counsel to 8 West 58th Street Hospitality, LLC
1501 Broadway, 22nd Floor
New York, New York 10036
By: J. Ted Donovan
Kevin J. Nash
PICK & ZABICKI LLP
Counsel to Be My Guest LLC
369 Lexington Avenue, 12th Floor
New York, New York 10017
By: Douglas J. Pick
Eric C. Zabicki
SEAN H. LANE
UNITED STATES BANKRUPTCY JUDGE
Before the Court are two motions: Be My Guest LLC’s (“BMG”) Motion to Allow for
Limited Relief from the Order Pursuant to Bankruptcy Rule 9024 (“BMG’s Motion”) (ECF No.
68) and 8 West 58th Street Hospitality LLC’s (the “Debtor”) Motion to Compel Compliance with
Order Approving Plan Funding Agreements (“Debtor’s Motion to Compel”) (ECF No. 76). The
Court preliminarily denied BMG’s Motion and granted in part the Debtor’s Motion to Compel
from the bench, and this decision is issued to provide a more detailed explanation of the Court’s
ruling.
14-11524-shl Doc 91 Filed 12/21/15 Entered 12/21/15 16:08:50 Main Document
Pg 1 of 12

2
BACKGROUND
The Debtor was formed in February 2012 to develop and operate a restaurant. To that
end, the Debtor entered into a lease agreement (the “Lease”) in August 2012 that covered the
premises at 14 East 58th Street, New York, New York (the “Premises”) with Lawrence Friedland
and the Estate of Melvin Friedland (together, “Friedland”). As of January 1, 2014, Friedland’s
rights under the Lease were assigned to 14 East 58th LLC (the “Landlord”). While the restaurant
opened in fall 2013, the Debtor ultimately defaulted under the payment terms of the Lease. In
March 2014, the Landlord commenced proceedings in the Civil Court of the City of New York
seeking to evict the Debtor from the Premises. On May 20, 2014, the Debtor filed for protection
under Chapter 11 of the Bankruptcy Code. In June 2014, the Landlord filed a motion to compel
the Debtor to pay its post-petition obligations under the Lease. See Motion to Compel Debtor to
Immediately Pay Post-Petition Obligations Due under Non-Residential Real Property Lease
(ECF No. 6).
In 2014, the Debtor’s principal, Max Burgio entered into negotiations with an individual
named Nello Balan regarding the possible funding of the Debtor’s exit from Chapter 11. As a
result, the Debtor entered into its first agreement with Nello Balan and his daughter Lucy Balan
(together, the “Balans”), entitled “Letter Agreement for the restructuring of the restaurant located
at 8 West 58th Street, New York City, New York 10022,” dated July 9, 2014 (the “July Letter
Agreement”) (Exh. B to BMG’s Motion (ECF No. 68-3)). The July Letter Agreement provided
for the restructuring of the restaurant in Chapter 11 with Lucy Balan, either individually or
through BMG, acting as the ultimate funder of the reorganization plan (the “Proposed Plan”).
See July Letter Agreement at 1. The July Letter Agreement itemized payments to be made under
the Proposed Plan, which included a buy-out of limited partners in the amount of $350,000, and
14-11524-shl Doc 91 Filed 12/21/15 Entered 12/21/15 16:08:50 Main Document
Pg 2 of 12

3
a $100,000 payment upon confirmation to Mr. Burgio as “deferred compensation.” Id. at 2.
Additionally, Mr. Burgio would have a 25% membership interest in the Debtor, along with Lucy
Balan (35% interest), and Oswaldo Karam (40% interest). Id. Following confirmation of the
Proposed Plan, Lucy Balan would then designate a management company to operate and manage
the restaurant, with Mr. Burgio to serve as general manager. Id.
On September 4, 2014, the Court entered a consent order to resolve the Landlord’s
motion to compel under which the Landlord was to receive $132,475.678, plus September 2014
base rent. See Consent Order ¶ 1 (ECF No. 21). Later that September, the Debtor filed a motion
to assume and assign the Lease under 11 U.S.C. § 365(a) and (f). See Motion to Assume Leases
or Executory Contracts and Assign Lease (ECF No. 28).
In the meantime, relations between Mr. Balan and Mr. Burgio had deteriorated to the
point that it became necessary to reconsider the membership interests of the Debtor going
forward. See Hearing Transcript (“Hr’g Tr.”) of October 29, 2014 at 7:4–19 (ECF No. 47). By
letter of October 20, 2014, Mr. Balan, Mr. Karam, and Mr. Burgio entered into an agreement that
superseded “in relevant part only” the July Letter Agreement (the “October Letter Agreement”)
(Exh. D to BMG’s Motion (ECF No. 68-5)). In the October Letter Agreement, Mr. Burgio
forfeited any ownership or other interest of any kind in BMG or to any restaurant or business to
be operated at the Premises. See October Letter Agreement at 1. In exchange, Mr. Burgio would
be paid a total of $900,000, “to be personally guaranteed by Nello, Lucy or the entity they use to
invest in BMG.” Id. BMG would guarantee all the payments set forth in the October Letter
Agreement except for a $150,000 payment to be made on December 15, 2014 by Mr. Balan. See
id. The $900,000 was broken into five payments, the relevant payments here being: $150,000 on
14-11524-shl Doc 91 Filed 12/21/15 Entered 12/21/15 16:08:50 Main Document
Pg 3 of 12

4
December 15, 2014, payable by Nello and two payments of $300,000 “as a consulting fee”
payable by BMG. Id.
A hearing was held on October 29, 2014 (the “October 29th Hearing”) to consider the
Debtor’s motion to assume and assign the Lease. At the hearing, counsel was present for the
Debtor, BMG, and the Landlord. The parties informed the Court of a final agreement that
resolved security for certain payments under the October Letter Agreement as follows: (i) the
$600,000 consulting fee payment to Mr. Burgio would be secured by a confession of judgment
from BMG; and (ii) the $150,000 deferred payment to Mr. Burgio would be subject to a
confession of judgment from Nello Balan and/or his daughter Lucy. Hr’g Tr. of October 29,
2014 at 19:20–20:15. The parties also agreed to extensions of time for some of the payments,
including: (1) extending the date by which Mr. Burgio was to be paid the $150,000 from
December 15, 2015 to January 15, 2015; and (2) deferring the $600,000 in consulting fees until
March 1, 2015. See id. at 19:20–22. No party raised any objections to the terms of the final
agreement or to the Debtor’s request to have the hearing transcript “so-ordered” by the Court.
Id. at 20:25–21:7. After the hearing, a proposed order was circulated among the parties. Once
all parties had an opportunity to propose and implement changes, the order was submitted to the
Court on consent. No objections were made and the order was entered on November 6, 2014.
See Order Authorizing Assumption and Assignment of the Debtor’s Commercial Lease for
Premises at 14 East 58th Street, New York, NY (the “Order”) (ECF No. 35). The Order
provided that BMG agreed to fund a plan based upon the “Plan LOI” in return for the assignment
of the Lease to BMG. See Order at 1. The Order defined the “Plan LOI” as: “(i) the Letter of
Intent dated July 9, 2014, as supplemented by letter dated October 20, 2014; and (ii) the
statements made on the so-ordered record of the [October 29, 2014] Hearing relating to the
14-11524-shl Doc 91 Filed 12/21/15 Entered 12/21/15 16:08:50 Main Document
Pg 4 of 12

5
execution of confessions of judgment by BMG and Nello Balan and/or Lucy Balan to secure
certain deferred payments to Max Burgio.” See id.
BMG did not make the $150,000 payment to Mr. Burgio on January 15, 2015 as required
by the Order. The Debtor sent copies of a draft plan and disclosure statement to the parties and
received no comments. See Debtor’s Motion to Compel ¶ 30. On January 29, 2015, the Debtor
filed its proposed plan and disclosure statement. (ECF Nos. 41, 42). On February 24, 2015,
BMG filed an objection to the disclosure statement. See Objection to Disclosure Statement (ECF
No. 45). The parties went through mediation, which was ultimately unsuccessful. BMG now
seeks relief from or clarification of the Order under Rule 60(b)(1) and (6) of the Federal Rules of
Civil Procedure. See BMG’s Motion ¶ 23. It claims that there was no obligation to provide
security for the payments to Mr. Burgio and that the agreements between the parties were not
final but merely “agreements[s] to continue negotiating.” See BMG’s Motion at ¶ 18.
DISCUSSION
Rule 60(b) of the Federal Rules of Civil Procedure is made applicable to bankruptcy
proceedings through Federal Rule of Bankruptcy Procedure 9024. Fed. R. Bankr. P. 9024. Rule
60(b) provides, in pertinent part, that “the court may relieve a party . . . from a final judgment,
order, or proceeding for . . . (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6)
any other reason that justifies relief.” Fed. R. Civ. P. 60(b). The Second Circuit utilizes a three-
prong standard when considering a Rule 60(b) motion: “first, there must be ‘highly convincing’
evidence supporting the motion; second, the moving party must show good cause for failing to
act sooner; and third, the moving party must show that granting the motion will not impose an
undue hardship on the other party.” Broadway v. City of New York, 2003 WL 21209635, at *3
(S.D.N.Y. May 21, 2003) (citing Kotlicky v. U.S. Fid. & Guar. Co., 817 F.2d 6, 9 (2d Cir.
14-11524-shl Doc 91 Filed 12/21/15 Entered 12/21/15 16:08:50 Main Document
Pg 5 of 12

6
1987)). The burden of proof on a Rule 60(b) motion is on the movant and is “properly granted
only upon a showing of exceptional circumstances.” United States v. Int’l Bhd. of Teamsters,
247 F.3d 370, 391 (2d Cir. 2001). “A motion under Rule 60(b) is addressed to the sound
discretion of the trial court.” Velez v. Vassallo, 203 F. Supp. 2d 312, 333 (S.D.N.Y. 2002).
When determining Rule 60(b) motions, courts “balance fairness considerations present in a
particular case against the policy favoring the finality of judgments.” Williams v. N.Y.C. Dep’t of
Corrections, 219 F.R.D. 78, 84 (S.D.N.Y. 2003) (citing Kotlicky, 817 F.2d at 9).
A. BMG’s Request for Relief under Rule 60(b)(1)
In its motion, BMG seeks to be absolved of its obligations under the Order, including the
obligation to provide confessions of judgment to secure the payments to Mr. Burgio. Turning to
the first prong, BMG has failed to produce any evidence, let alone “highly convincing” evidence,
supporting its request for relief based on mistake, inadvertence, surprise, or excusable neglect.
See Broadway v. City of New York, 2003 WL 21209635, at *3. BMG has not identified any
controlling law or factual matters that the Court overlooked. DGM Invs., Inc. v. N.Y. Futures
Exch., Inc., 288 F. Supp. 2d 519, 523 (S.D.N.Y. 2003); see also In re Residential Capital, LLC,
2015 WL 1598090, at *8 (Bankr. S.D.N.Y. Apr. 9, 2015) (citing In re Old Carco LLC, 423 B.R.
40, 45 (Bankr. S.D.N.Y. 2010) (on a Rule 60(b)(1) motion, mistake “has been held to include
mistakes made by the court”)).1 Rather, BMG points to several alleged inconsistencies between
1 At oral argument on BMG’s Motion, BMG’s current counsel implied that BMG’s prior counsel erred by
failing to object to the Order on the grounds that it did not accurately reflect what was so-ordered at the October
29th Hearing. See Hr’g Tr. of September 22, 2015 at 18:6–10 (ECF No. 86). However, BMG did not raise such an
argument in its papers as a ground for the relief requested. Even if it had, such an argument would fail. While
“[r]elief from counsel’s error is normally sought pursuant to [Rule] 60(b)(1) on the theory that such error constitutes
mistake, inadvertence or excusable neglect” the Second Circuit has found that “an attorney’s failure to evaluate
carefully the legal consequences of a chosen course of action provides no basis for relief from a judgment.”
Nemaizer v. Baker, 793 F.2d 58, 62 (2d Cir. 1986).
14-11524-shl Doc 91 Filed 12/21/15 Entered 12/21/15 16:08:50 Main Document
Pg 6 of 12

7
the Order, the October 29th Hearing, and the October Letter Agreement. However, the Court
finds these inconsistencies are inconsequential.
For example, BMG asserts that while the Order states that the July Letter Agreement was
“supplemented” by the October Letter Agreement, in fact the October Letter Agreement
“substantially modified and/or . . . substantially superseded” the July Letter Agreement. See
BMG’s Motion ¶ 17(a). This is a distinction without a difference. By its own terms, the October
Letter Agreement superseded “in relevant part only,” the July Letter Agreement. See October
Letter Agreement at 1.
BMG alleges a second inconsistency as to the guaranty of the five payments to be made
to Mr. Burgio. See BMG’s Motion ¶ 17(b), (c). At the October 29th Hearing, the Debtor’s
counsel stated that the $600,000 consulting fee payment would be secured by a confession of
judgment from the assignee BMG, and that another $150,000 payment would be subject to a
confession of judgment from Nello Balan and/or Lucy Balan. See Hr’g Tr. of October 29, 2014
at 19:20–20:14. BMG argues the Order is inconsistent with these statements as “[c]learly,
neither Nello Balan nor Lucy Balan had agreed to sign a personal guaranty of the $600,000.00 in
consulting fee payments.” BMG’s Motion ¶ 17. But the language of the Order does not support
BMG. It provides in relevant part: “Nello Balan and/or Lucy Balan shall execute a personal
guaranty, as per the terms of the Plan LOI, and BMG and Nello Balan and/or Lucy Balan shall
execute respective confessions of judgment as per the terms set forth on the so-ordered
record . . . .” Order ¶ 6. Thus, there is no inconsistency as the Order incorporates the
representations made on the record at the hearing. In fact, the Debtor’s counsel subsequently
confirmed that the $600,000 payment was to be secured by a confession of judgment by BMG
and the $150,000 is to be secured by a confession of judgment by Nello Balan and/or his
14-11524-shl Doc 91 Filed 12/21/15 Entered 12/21/15 16:08:50 Main Document
Pg 7 of 12

8
daughter, Lucy. See Hr’g Tr. of September 22, 2015 at 33:12–20; 35:9–25 (the Court stating
“[t]here’s no independent guarantee other than the two confessions of judgment[;]” to which no
party objected).
BMG also attempts to characterize the letter agreements as merely drafts of points to be
negotiated further—“essentially an agreement to continue negotiating” to reach an agreement.
BMG’s Motion ¶ 18. To support its claim, BMG argues the parties never specified what services
Mr. Burgio would be required to perform in exchange for receiving the consulting fees referred
to in the October Letter Agreement. However, based on testimony offered and BMG’s own
representations, it is evident the consulting fees to be paid to Mr. Burgio essentially served as a
buy-out of his interest in the company. See BMG’s Motion ¶ 10; Hr’g Tr. of October 29, 2014 at
7:4–17. As relations had soured between Mr. Burgio, Mr. Balan, and Mr. Karam, it had become
clear that moving forward the management structure of the company would need to change.
Thus, pursuant to the October Letter Agreement Mr. Burgio was to receive a total of $900,000—
$600,000 of which was referred to as consulting fees—in exchange for giving up any interest in
BMG or any business or restaurant operated on the Premises. See October Letter Agreement at
1. At the October 29th Hearing, the Debtor’s counsel made clear what the consulting fees
represented:
Under the terms of the letter intent Mr. Bergio [sic], who is going to be an
investor and partner in the new entity, based upon his prior contributions, is no
longer going to be an investor, and in lieu of that he’s going to . . . receive certain
consulting payments over a two-year period without any ownership equity rights
in the new enterprise.
Hr’g Tr. of October 29, 2014 at 21:3–9. BMG’s counsel did not object or challenge that
characterization. The Order also provides that: “the terms and conditions of this Order and the
Assumption and Assignment Agreement shall be effective immediately.” Order ¶ 4. Thus, the
14-11524-shl Doc 91 Filed 12/21/15 Entered 12/21/15 16:08:50 Main Document
Pg 8 of 12

9
Order was not contingent upon further agreement. See Hr’g Tr. of October 29, 2014 at 19:7–20
(Debtor’s counsel stating the parties reached an agreement as to the “last issue”).
BMG further argues that the $900,000 in payments to Mr. Burgio reflected in the October
Letter Agreement replaced the $350,000 payment to “buy out” limited partners of the Debtor and
the $150,000 payment to Mr. Burgio as deferred compensation. This argument was not made in
BMG’s Motion but rather at the hearing on September 22, 2015. See Hr’g Tr. of September 22,
2015 at 40:10–13, 42:4–9.2 In any event, the $350,000 “buy out” of the Debtor’s limited
partners contemplated in the July Letter Agreement is consistent with the relevant portion of the
Proposed Plan, which provides that each limited partner is to receive a pro-rata share of
$350,000 over four years. Proposed Plan at ¶ 4.4 (ECF No. 41). Furthermore, there is nothing in
the record to support BMG’s contention that the payments to Mr. Burgio under the October
Letter Agreement were intended to supersede the limited partner buy-out.3
BMG also relies on paragraph six of the Order which states:
Nello Balan and/or Lucy Balan shall execute a personal guaranty, as per the terms
of the Plan LOI, and BMG and Nello Balan and/or Lucy Balan shall execute
respective confessions of judgment as per the terms set forth on the so-ordered
record of the [October 29, 2014] Hearing which is incorporated by reference.
Order at ¶ 6. BMG argues paragraph six is “wrong” and is inconsistent with what was stated at
the October 29th Hearing. See Hr’g Tr. of September 22, 2015 at 14:11–12; 18:3–4. But
2 BMG incorrectly contends that it made this argument in its papers, directing the Court to the fourth box in a
chart located in paragraph four of its response. Hr’g Tr. of September 22, 2015 at 43:3–10; see Statement of Be My
Guest LLC in Reply to Debtor’s Motion to Compel (“BMG’s Reply”) ¶ 4 (ECF No. 78). However, that chart
simply references alleged inconsistences between the July Letter Agreement and the Debtor’s Proposed Plan.
BMG’s Reply ¶ 4; see Hr’g Tr. of September 22, 2015 at 46:19–47:1. As the argument was not raised in BMG’s
Motion, it is not properly before the Court. See c.f. In re Hagerstown Fiber Ltd. P’ship, 226 B.R. 353, 355 (Bankr.
S.D.N.Y. 1998) (concluding on a motion for reargument, “parties cannot advance new facts or arguments”).
3 The Court recognizes there may be issues relating to the Proposed Plan, including but not limited to the
appropriateness of proposed payments to the Debtor’s principal. However, such issues are not properly before the
Court at this time but will be addressed as appropriate at plan confirmation.
14-11524-shl Doc 91 Filed 12/21/15 Entered 12/21/15 16:08:50 Main Document
Pg 9 of 12

10
BMG’s counsel was, in fact, responsible for drafting paragraph six. See Exh. E to Debtor’s
Motion to Compel (ECF No. 76-4). “In cases of doubt or ambiguity, a contract must be
construed most strongly against the party who prepared it . . . .” Jacobson v. Sassower, 66
N.Y.2d 991, 993 (1985). Having drafted this language and then consented to its entry after the
October 29th Hearing, BMG cannot now be heard to complain of its terms. In any event, the
Court finds no inconsistency between the so-ordered record and language of paragraph six of the
Order.
In sum, the inconsistencies alleged by BMG do not justify granting a Rule 60(b) motion,
which is done only in “exceptional circumstances.” Int’l Bhd. of Teamsters, 247 F.3d at 391.
BMG has not offered “highly convincing” evidence that the Order was made in error. BMG’s
statement that the Order did not “correctly incorporate the understanding among the parties
and/or has created confusion” is unavailing. See BMG’s Motion ¶ 28. The Order is clear in its
requirements and consistent with what was agreed to by the parties prior to its entry. Thus,
BMG has failed to present convincing evidence to support any of the grounds for relief found in
Rule 60(b)(1).
Turning to the second requirement for relief under Rule 60(b), BMG has not shown good
cause for failing to act sooner. “Mere dissatisfaction in hindsight with choices deliberately made
by counsel is not grounds for finding the mistake, inadvertence, surprise or excusable neglect
necessary to justify Rule 60(b)(1) relief.” Nemaizer, 793 F.2d at 62. Yet that is what BMG is
attempting to do here. At the October 29th Hearing, Mr. Urquia, who identified himself as
representing Mr. Karam, BMG, and Mr. Balan, indicated on the record that there was a final
agreement. See Hr’g Tr. of October 29, 2014 at 14:7–11. Mr. Urquia raised no objections at the
hearing to having the transcript “so ordered,” nor were any objections raised to entry of the
14-11524-shl Doc 91 Filed 12/21/15 Entered 12/21/15 16:08:50 Main Document
Pg 10 of 12

11
Order. It is only months after the Order was entered on consent and after BMG has hired new
counsel that BMG sought relief from the Order.
Finally, turning to the last prong, BMG has failed to show that granting the motion will
not cause “undue hardship” to the Debtor. The Debtor prepared and filed a plan of
reorganization and a disclosure statement relying on the funding commitments provided in the
Order. Additionally, BMG has the Premises—a valuable asset—and thus, the benefit of the
Lease on the basis of the compromise memorialized in the Order, something that the Debtor
might not have agreed to in the absence of the parties’ global settlement. Relying on the so-
ordered record of the October 29th Hearing and subsequent Order, the Landlord also refrained
from pursuing certain remedies it had at its disposal. Upon balancing the interests of all parties
with the policy favoring finality of judgments, the Court finds that there would be prejudice if
BMG’s Motion were granted. See Williams, 219 F.R.D. at 86.
B. BMG’s Claim for Relief Under Rule 60(b)(6)
Finally, BMG’s claim for relief under Rule 60(b)(6) is unavailing. Rule 60(b)(6) is not
available as a ground for relief “if the reasons offered for relief from [the order] can be
considered in one of the more specific clauses of Rule 60(b) . . . .” Int’l Bhd. of Teamsters, 247
F.3d at 391–92; In re Salander, 450 B.R. 37, 56 (Bankr. S.D.N.Y. 2011) (“Reasons for relief that
fall under other subsections of Rule 60(b) do not qualify as justification for relief under Rule
60(b)(6).”); In re Calpine Corp., 363 B.R. 709, 711 (Bankr. S.D.N.Y. 2007) (finding party could
not properly move for relief under Rule 60(b)(6) where grounds for his motion were provided for
under Rule 60(b)(1)). Here, BMG relies on Rule 60(b)(6) as an alternative ground for relief. Yet
courts have been clear that Rule 60(b)(6) simply cannot be used in such a manner. Furthermore,
“[t]o justify relief under subsection (6), a party must show ‘extraordinary circumstances’
14-11524-shl Doc 91 Filed 12/21/15 Entered 12/21/15 16:08:50 Main Document
Pg 11 of 12

12
suggesting that the party is faultless in the delay.” Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 393 (1993). BMG has not made such a showing. Rather, BMG’s
delay is a result of its own inaction. Thus, BMG has failed to demonstrate the existence of
exceptional circumstances sufficient to warrant the extraordinary relief provided by Rule 60(b).4
CONCLUSION
Based on the foregoing, the Court denies BMG’s Motion to Allow for Limited Relief
from the Order Pursuant to Bankruptcy Rule 9024 and grants the Debtor’s Motion to Compel
Compliance with Order Approving Plan Funding Agreements to the extent it requires the
securing of confessions of judgment by BMG and Nello Balan and/or Lucy Balan as per the
so-ordered record of the October 29th Hearing and as memorialized in paragraph six of the
Order. Such confessions of judgment shall be executed within 10 days of this Order and
substantially in the form annexed as Exhibit A to the Debtor’s proposed order.
IT IS SO ORDERED.
Dated: New York, New York
December 21, 2015
/s/ Sean H. Lane___________________________
UNITED STATES BANKRUPTCY JUDGE
4 The Debtor briefly raises the doctrines of judicial and equitable estoppel as alternative theories to support
its request that BMG and its principals be compelled to comply with the Order. See Debtor’s Motion to Compel ¶¶
53–54. But given the Court’s conclusion above to deny BMG’s motion, it is unnecessary for this Court to address
these alternative bases for enforcing the Order.
As an alternative to compelling BMG and its principals to comply with the Order, the Debtor’s Motion
requested that the Court vacate the part of the Order that assigned the Lease to BMG, and permit the Debtor to re-
market the Lease for sale to a third party. Debtor’s Motion to Compel ¶ 7. At the hearing held on September 22,
2015, however, the Debtor’s counsel stated this request was “a throwaway line and I’m taking it out . . . . It was in
an earlier draft and it should have been removed.” Hr’g Tr. of September 22, 2015 at 37:6–12. As the Debtor is no
longer seeking this alternative relief, the Court need not address this request. Accordingly, the Court also need not
address the Opposition and Response of 14 East 58th LLC to Debtor’s Motion to Compel Compliance with Order
Approving Plan Funding Agreements (ECF No. 77), in which the Landlord argued against permitting the vacatur of
the portion of the Order that assigned the Lease.
14-11524-shl Doc 91 Filed 12/21/15 Entered 12/21/15 16:08:50 Main Document
Pg 12 of 12