18-1734 United States v. Tannenbaum 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY 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 Courthous e, 40 Foley Square, in the City of New York, on the 18 th day of April, two thousand nineteen. PRESENT: BARRINGTON D. PARKER, PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges

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_____________________________________ United States of America, Plaintiff-Appellant , v. No. 18-1734 Gershon Tannenbaum, Sarah Ta nnenbaum, New York State Department of Taxation and Fina nce, United States Securities and Exchange Commission, Defendants-Appellees , M&T Mortgage Corporation, assignee to Greate r New York Savings Bank, JPMorgan Chase & Co., Successor to Chemical Bank, Bank of New Yo rk Mellon, David Sheldon, City of New York Parking Violations Bureau, City of New York Department of Environmental Protection, Defendants.

_____________________________________ For Appellant: T HOMAS J. C LARK , Attorney, Tax Division, (Sherra Wong, Attorney, Tax Division, Richard E.

### 2 Zuckerman, Principal Deputy Assistant Attorney General, on the brief ), Department of Justice, Washington, D.C., Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY For Appellee Sarah Tannenbaum: P AULA S. F ROME (James O. Druker, on the brief ), Kase & Druker, Garden City, NY Appeal from an order of the United States Di strict Court for the Eastern District of New York (Brodie, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED. Plaintiff-Appellant the Un ited States of America appeal s from the April 10, 2018 order of

the district court vaca ting in part its judgment of A ugust 15, 2016 (“the August 2016 judgment”), pursuant to Fed. R. Civ. P. 60(b). The August 2016 judgment had granted the government’s motion for summary judgment. The judgment provide d that the United States has valid federal tax and judgment liens on the property locate d at 927 51st Street, Brooklyn, New York (“the Property”) and further ordered that the government could foreclose on and sell the Property, with fifty percent of the sale proceeds to be distributed to satisfy fe deral tax liens against Defendant Gershon Tannenbaum (“Mr. Tannenbaum”), and fi fty percent of the sales proceeds to be distributed to Mr. Tannenbaum’s wife, Defendant-Appellee Sarah Tannenbaum (“Ms. Tannenbaum”).

Unbeknownst to the district c ourt, Mr. Tannenbaum had died approximately six months before its August 2016 judgment issued. Beca use Mr. and Ms. Tannenbaum had owned the Property as tenants by the entirety while Mr. Ta nnenbaum was still alive, his interest in the Property extinguished upon his death. See Matter of Violi , 482 N.E.2d 29, 31 (N.Y. 1985).

### 3 Following Ms. Tannenbaum’s Rule 60(b) motion, the district court v acated the August 2016 judgment to the extent it ordered that the govern ment could enforce its li ens against and sell the Property. The district court thus ordered that Ms. Ta nnenbaum is the sole owner of the Property, which is no longer encumbered by federal tax liens. We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal. The government argues that the district court erred in granting Rule 60(b) relief by refusing to enter its August 2016 judgment nunc pro tunc as of the date the parties’ summary judgment motions were submitted to the district court, at a time when Mr. Tannenbaum was still alive.

“ Nunc pro tunc, Latin for ‘now for then,’ refers to a cour t’s inherent power to enter an order having

retroactive effect.” Iouri v. Ashcroft , 487 F.3d 76, 87 (2d Cir. 2007). “It is a far-reaching equitable remedy applied in certain exceptional cas es, typically aimed at rectifying any injustice to the parties suffered by them on account of judicial delay.” Id. (internal citations and quotation marks omitted). As an initial matter, we decline the government’s invitation to hold that the district court had “a ‘duty’ to enter its judgment nunc pro tunc ,” citing Mitchell v. Overman , 103 U.S. 62, 65 (1880). Appellant’s Br. at 17. It is well established that “[w]e review the grant or denial of equitable relief for abuse of discretion,” In re World Trade Ctr. Lo wer Manhattan Disaster Site Litig. , 758 F.3d 202, 214 (2d Cir. 2014) (internal quotation marks omitte d), and the Supreme Court

in Mitchell likewise recognized that “[a] nunc pro tunc order should be granted or refused, as justice may require in view of the circumstances of the partic ular case,” 103 U.S. at 65. Our review is therefore limited to the question of whet her the district court a bused its discretion in granting Ms. Tannenbaum’s Rule 60(b) motion and vacating its August 2016 judgment.

### 4 Abuse of discretion may include, “ inter alia , a ruling based on an e rroneous view of the law or on a clearly erroneous a ssessment of the evidence.” Bano v. Union Carbide Corp. , 361 F.3d 696, 716 (2d Cir. 2004). A district court ma y also abuse its discretion if “its decision— though not necessarily the product of a legal erro r or a clearly erroneous factual finding—cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc. , 252 F.3d 163, 169 (2d Cir. 2001). Here, the record establishes that the district co urt considered the equities but decided that it could not allow the August 2016 j udgment to stand when Mr. Tannenbaum had no interest in the Property at the time the governme nt’s motion for summary judgment was granted, which the government does not dispute. See Appellant’s Br. at 18 ( acknowledging that “at the time the District Court entered its summary judgm ent, in August 2016, the federal tax lien did not attach to any interest in the Property.”) We th erefore do not conclude that the district court

abused its discretion in declin ing the government’s request to issue its August 2016 judgment nunc pro tunc

. We have considered Appellant’s remaining arguments and find them to be without merit. We hereby AFFIRM the order of the district court.

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