Opinion
05 Civ. 9713 (DC).
November 20, 2006
PROSKAUER ROSE LLP, By: Margaret Dale, Esq, Scott R. Landau, Esq., New York, New York, and HONIGMAN MILLER SCHWARTZ AND COHN LLP, By: Norman Ankers, Esq., Detroit, MI, Attorneys for Plaintiff.
THOMPSON HINE LLP, By: Joseph B. Koczko, Esq., New York, New York, Attorneys for Defendants.
MEMORANDUM DECISION
In this diversity breach of contract case, plaintiff moves for summary judgment, arguing that defendants owe plaintiff $126,000 for their failure to refund his money in connection with the sale of a boat. For the following reasons, plaintiff's motion is granted.
BACKGROUND
A. The FactsAs defendants have not responded to plaintiff's motion, the facts alleged in the moving papers are deemed to be true. They are summarized as follows:
Plaintiff Raymond Rapaport and defendants 1314527 Ontario Limited, operating as Saga Marine, and Allan Poole are parties to agreements pursuant to which defendants promised to build a boat for plaintiff in exchange for specified periodic payments. (Affidavit of Raymond Rapaport in Support of Motion for Summary Judgment ("Rapaport Aff.") ¶ 3, Ex. 1). Defendants agreed unconditionally to refund any and all payments made by plaintiff if "the test sail [was] not satisfactory to [plaintiff]." (Id. ¶ 3).
After plaintiff's test sail, he advised defendants that he was dissatisfied with the performance of the boat, and demanded a full refund. (Id. ¶ 4). Defendants acknowledged that he was entitled to a full refund, but nonetheless asked plaintiff for the money. (Id.). Poole told plaintiff that he needed the money to complete and sell the boat, whereupon he would provide a full refund to plaintiff. (Id.).
As a result, plaintiff advanced an additional $54,000 to defendants. (Id.). Upon completing and selling the boat, however, defendants never fully refunded plaintiff his money. (Id.). Defendants paid plaintiff $100,000 of the $226,000 that plaintiff had advanced to defendants. (Id.). Defendants thus continue to owe plaintiff $126,000. (Id.).
B. Procedural History
On November 17, 2005, plaintiff filed a complaint against defendants in this Court for breach of contract, conversion, and fraud.
On May 12, 2005, the Court set a briefing schedule for plaintiff's summary judgment motion. Plaintiff's motion for summary judgment was to be filed on June 2, 2006; defendants' opposition was to be filed on June 23, 2006; and plaintiff's reply was to be filed on June 30, 2006.
Plaintiff, in compliance with the briefing schedule, filed his motion for summary judgment on June 2, 2006. By letter dated July 11, 2006, plaintiff notified the Court that defendant had failed to oppose the motion, and that the June 23rd deadline had long since passed. Plaintiff requested that the Court grant plaintiff all the relief requested in the complaint, including costs, attorneys' fees, and interest. Defendants responded by letter dated July 14, 2006, explaining that the parties were close to settling the matter. No settlement, however, was ever reached.
On September 6, 2006, plaintiff once again informed the Court that defendants still had not filed any opposition to his motion for summary judgment. Plaintiff proceeded to ask the Court to grant the motion in its favor. To date, defendants still have not filed any opposition to plaintiff's motion. Nor have defendants responded to plaintiff's September 6, 2006 letter.
DISCUSSION
Plaintiff's motion for summary judgment is granted. Although defendants have defaulted, I nevertheless discuss the merits of plaintiff's claim below.
A. Applicable Law 1. Summary Judgment Standard
Summary judgment will be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, there exists a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248; accord Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991).
To defeat a motion for summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus., 475 U.S. at 586. There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor. Anderson, 477 U.S. at 249-50. "If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e); Patterson v. County of Oneida, New York, 375 F.3d 206, 219 (2d. Cir. 2004).
B. Application
Here, the agreements state — in no uncertain terms — that plaintiff is entitled to a full refund if he is not satisfied with the performance of the boat after the test sail. (Rapaport Aff. Ex. 1). Because plaintiff expressed dissatisfaction with the performance of the boat after the test sail, defendants were required to provide a full refund to him.
Defendants, who have not opposed plaintiff's motion for summary judgment, cannot rebut this evidence. Nor does there appear to be any meritorious defense. Thus there is no material issue of fact for trial. See Anderson, 477 U.S. at 249-50. As Rule 56(e) states, "[i]f the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e); see also Patterson, 375 F.3d at 219. Accordingly, summary judgment against defendants is granted.
CONCLUSION
For the foregoing reasons, plaintiff's motion for summary judgment is granted. Judgment will be entered in favor of plaintiff against defendants, in the amount of $126,000, with interest at 9% per annum from May 15, 2005 until November 20, 2006, with costs. As the agreements are silent on the issue of attorneys' fees, and plaintiff has not identified any basis for an award of fees, his request for attorneys' fees is denied. Plaintiff's fraud and conversion claim are dismissed, without prejudice.SO ORDERED.