Opinion
No. 04 Civ. 1150 (GEL).
September 9, 2004
Jonathan M. Kuller, Podvey, Sachs, Meanor, Catenacci, Hildner Cocoziello, P.C., Newark, NJ, for plaintiff.
Ronald Scott Kaniuk (of Counsel), Kera Graubard Litzman, New York, NY, for defendants.
OPINION AND ORDER
Plaintiff Liberty Mutual Fire Insurance Company ("Liberty Mutual") moves for partial summary judgment on its first and third claims, respectively a claim for monetary judgment against certain defendant corporations under a settlement agreement and a claim against Leo Baldari, their president and the guarantor of the Agreement. For the reasons set forth below, plaintiff's motion will be granted.
Plaintiff asks for accompanying attorneys' fees and costs, but has deferred its request until the conclusion of the case. (P. Br. 2).
BACKGROUND
From the period of July 8, 1996 through November 1, 1997, Liberty Mutual provided workers' compensation, employer liability and business auto insurance to defendants. A dispute arose between the parties concerning premiums, and on June 19, 2001, the parties entered into a settlement agreement and limited release ("the Agreement"). (Kuller Aff., Ex. B.) Paragraph 1(K) of the Agreement states the amount due Liberty Mutual to be $471,600.75. (Id.) Paragraph 4(G) of the Agreement also stipulates:
Upon default by Mystic as to any payment, after written notice of default to counsel for Mystic, following a ten (10) day grace period, Liberty [m]ay institute legal action against Mystic . . . Mystic does further agree that in the even[t] of default, Liberty may enter judgment by confession against Mystic, pursuant to the Affidavit for Judgment by Confession.
(Id.) Additionally, defendant Baldari executed an unconditional guaranty of payment ("the Guarantee"), pursuant to which Baldari is also liable for attorney's fees and costs. (Id. at Ex. J.) It is undisputed that defendants paid $354,166 under the Agreement and thereafter defaulted, leaving a balance of $117,434.75. (Potvin Aff. 3; D. Answ. ¶ 29.)
Following the appropriate notice period, plaintiff filed this complaint in the Southern District of New York, pursuant to 28 U.S.C. § 1332, and to a provision in the Agreement laying venue in this district, and subsequently filed for partial summary judgment on its claims against defendant companies for moneys due under the Agreement and against Baldari as guarantor. During the pendency of that motion, defendants defaulted, despite having twice entered stipulations extending their time to answer the complaint. In addition, the deadline for filing their opposition to the motion for summary judgment came and went. Having learned from the plaintiff that a suggestion of bankruptcy had been filed and certain non-bankrupt defendants had filed an answer out-of-time, the Court then denied the plaintiff's motion as moot (without prejudice to its refiling), stayed the case as to the bankrupt defendants, and deemed the remaining defendants' answer timely filed. Plaintiff then reinstated its motion for summary judgment, which the non-bankrupt defendants then timely opposed.
Although this defense was not briefed — or even mentioned — in defendants' opposition memo, defendants appear to suggest lack of jurisdiction in their answer to the complaint, claiming that "the Plaintiff [does not have] sufficient contacts in New York for jurisdiction to attach." (Answ. ¶ 53.) The plaintiff's lack of contacts with New York are irrelevant to both personal and subject matter jurisdiction. Pursuant to a clause in the Agreement establishing jurisdiction and venue in the Southern District of New York, the plaintiff has chosen to prosecute the case in, and submitted to the personal jurisdiction of, this Court. (Kuller Aff. Ex. B, ¶ 4(G).) Plaintiff asserts subject matter jurisdiction based on diversity of citizenship, since plaintiff is a citizen of Massachusetts and none of the corporate defendants are citizens of or have Massachusetts as their principal place of business. (Compl. ¶¶ 2-13; Kuller Aff. Ex. A.) Defendants have admitted these allegations. (Answ. ¶¶ 2-13.) It is also undisputed that the . . . amount in controversy exceeds $75,000. Accordingly, the Court has jurisdiction over both the subject matter and the parties.
These defendants are Western Nassau Terminals, Inc., Western Suffolk Terminal Corp, 65 South 4th Realty Corp, East Bay Terminals, Inc., Michael Leasing of New Jersey, Inc., and Leonard Baldari. For unexplained reasons, defendants' opposition brief was filed on behalf of all of these defendants except Michael Leasing.
DISCUSSION
A party may move for summary judgment "upon all or any part" of its complaint at any time after 20 days after the commencement of an action. Fed.R.Civ.P. 56(a). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the District Court of the basis for its motion and identifying those portions of the record which it believes "demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to produce evidence sufficient to create a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 323;Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).Plaintiff has presented evidence that the amount claimed in default is indisputably due under the Agreement. Defendants do not dispute plaintiff's accounting of either the amount paid or the remaining balance. Instead, they assert that this represents "only half the story," and suggest several purported defenses calling into question the validity of the Agreement and Guarantee in the first instance: (1) that conflicts of interest on behalf of the defendants' former law firm potentially invalidate the Agreement and Guaranty; (2) that Mr. Baldari received no consideration for guaranteeing the Agreement; (3) that the non-bankrupt defendants are not in, possession of documents regarding the case that are purportedly still in the possession of former counsel; (4) that they need to examine why certain of the defendants, which they assert are "holding companies without any employees" were named as insured parties and/or signatories to the Agreement.
Defendants fail to present a coherent account of the "other half" of the story, or to satisfy their burden of raising triable questions of fact. First, they have failed to submit a single affidavit, to point to any other piece of admissible evidence in support of their assertions, or to counter plaintiff's rule 56(e) statement of undisputed facts. See Local R. 56.1(d) ("Each statement of material fact by a movant or opponent must be followed by a citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e)."). They have thus failed to carry their burden of pointing to evidence demonstrating a triable issue of fact.
Even if the Court were to overlook these evidentiary and procedural deficiencies, the defenses they have raised appear to be entirely without merit. Their opposition brief, which cites no substantive case law in support of their arguments, does nothing more than parrot unsubstantiated assertions in their Answer, without providing any additional factual detail or supporting authority. They have made no effort to explain why the circumstances they have identified as meriting "exploration" are in any way material to the validity of the Agreement or the Guarantee.
First, defendants fail to provide support in either fact or law for their contention that any of the answering corporate entities or Baldari somehow lacked the "capacity" to enter the Agreement, or that a conflict in attorney representation somehow "fraudulently induced" them to sign it. Defendants do not specify which of the moving entities were so induced or in what way, which lacked "capacity," or for what reason. Nor do they point to any support for their argument that a conflict of interest by an attorney representing multiple affiliated entities, each of which was a sophisticated business entity, would void that settlement. They do not dispute that the person who executed the Agreement on behalf of all the defendant signatories is defendant Baldari, who also served as the guarantor of the Agreement. On each acknowledgment form executing the Agreement, Baldari represented that he signed in his capacity as the president of each entity and that he was "fully authorized to and did execute this instrument as the act of the entity." (Kuller Aff. Ex. B.) Under the circumstances, it is entirely unclear how any purported attorney conflict could operate as a fraudulent inducement for any of these entities.
Defendants do not suggest that their attorneys' alleged conflict involved any obligation of the attorneys to plaintiff; instead, they appear to allege a conflict involving representation of multiple defendants and/or a fee dispute between defendants and their attorneys.
Defendants have similarly failed to explain the legal relevance of their contention that the answering defendants did not need workers' compensation and employers liability insurance. The Agreement represents a contract that was collateral to, and entered into in contemplation of the settlement of, a dispute over the underlying insurance contract. Whether these defendants did or did not need insurance coverage in the first place is irrelevant to the present dispute over the amount due under the Agreement, which was intended to settle any underlying dispute about the insurance contract.
As for the argument that Baldari lacked sufficient consideration on the Guarantee, it is well established that "consideration passing from a creditor to a principal obligor is sufficient consideration to support a third-party guaranty of the principal obligor's debts." First New York Bank for Business v. DeMarco, 130 B.R. 650, 654 (S.D.N.Y. 1991), citing Walter E. Heller Co. Inc. v. Cox, 343 F. Supp. 519, 527-28 (S.D.N.Y. 1972), aff'd, 486 F.2d 1398 (2d Cir. 1973). Furthermore, the New York Court of Appeals has held that an individual who executes an absolute and unconditional guaranty is precluded from raising not only lack of consideration, but also various contractual defenses such as fraud in the inducement. See Citibank, N.A. v. Plapinger, 66 N.Y.2d 90, 93 (1985). The Guarantee in question was such an unconditional guarantee.
In any event, defendants, under Baldari's direction, ratified the Agreement by performing their part of the bargain for over two years — namely, abiding by the payment schedule it set forth — and only raised their objections once they had breached and plaintiff sought to collect pursuant to the Agreement's terms. Under these circumstances, any potential defenses to the contract would no longer be available, as "it is well established that rescission must be promptly sought after the aggrieved party learns of the alleged fraud, or else is waived." Goodridge v. Harvey Group, Inc., 778 F. Supp. 115, 130 (S.D.N.Y. 1991);accord S.E.C. v. Credit Bancorp, Ltd. 147 F. Supp. 2d 238, 256 (S.D.N.Y. 2001); Industrial Recycling Systems, Inc. v. Ahneman Associates, P.C., 892 F. Supp. 547, 551 (S.D.N.Y. 1995).
At best, defendants' argument that they have "not yet had an opportunity to obtain access to or possession of" the relevant documents in the case might be construed as a request for further discovery pursuant to Rule 56(f) of the Federal Rules. However, that rule requires that such a showing be made upon affidavits, which, as previously discussed, defendants here have not submitted. Furthermore, such affidavits "must establish (1) the nature of the uncompleted discovery, (2) how these facts are likely to create a genuine issue of fact, (3) what efforts the party has made to obtain those facts, and (4) why those efforts were unsuccessful." State Bank of India v. Star Diamonds, Inc., 901 F. Supp. 177, 179 (S.D.N.Y. 1995), citing Burlington Coat Factory Warehouse v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir. 1985). Even apart from their failure to identify any specific document or pieces of evidence that they wish to obtain, defendants have utterly neglected — even in their unsworn submission — to explain what efforts they have made to obtain them or explain why they were unsuccessful. Defendants have been on notice of the motion since the motion was originally filed and served, in April 2004. Even given current counsel's late entry on the scene, defendants have now had two months since their answer was filed in which to obtain any relevant records from prior counsel. Moreover, as Baldari was apparently intimately involved in the underlying transactions, he would surely be in a position to identify and describe any documents relating to the matter that would need to be reviewed in order to establish any of defendants' purported defenses. Defendants have therefore failed to make the necessary showing for the Court to delay a ruling on the instant summary judgment motion in order to permit further discovery.
Equally unpersuasive is defendants' suggestion that the Court may not grant partial summary judgment because the bankruptcy of the remaining defendants would render the entry of such a judgment "unjust." Pursuant to Rule 54(b), the Court may only enter a final order of judgment "as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay." Fed.R.Civ.P. 54(b). Defendants present no reason why the Court should not make such a finding. They offer no justification for delaying adjudication of plaintiff's motion until the distant and unpredictable date when the bankruptcy proceedings are finally resolved. By requiring a stay of claims only against entities involved in bankruptcy proceedings, but not against other defendants, the Bankruptcy Code seeks to prevent precisely such delays. Cf. Teachers Ins. and Annuity Ass'n of America v. Butler, 803 F.2d 61, 65-66 (2d Cir. 1986) ("While we decline to define under what circumstances, if any, a bankruptcy court may properly exercise § 105 jurisdiction to issue a stay with respect to non-bankrupt co-defendants, it is clear that any such jurisdiction cannot extend to efforts made in bad faith by non-bankrupt co-defendants in order to escape from the liability imposed by an adverse district court judgment."). The prompt adjudication of plaintiff's claims against the non-bankrupt defendants would promote the goals of fairness, efficiency, and justice.
CONCLUSION
Accordingly, plaintiff's motion for partial summary judgment on the first and third causes of action with respect to the non-bankrupt defendants is granted, and a final order of judgment will be entered.
SO ORDERED: