The opinion of the court was delivered by: WEINFELD
This is another series of motions in a protracted litigation between the parties. Familiarity is assumed with the facts recited in the opinion of the District Court which denied a prior motion made by the defendant Anthony DeAngelis to vacate the attachment against his property issued upon the first claim of the complaint asserted against him individually, and which granted a motion made by the defendant partnership comprised of DeAngelis and his wife, to vacate the attachment against partnership property based upon the second claim.
The present motions enumerated herein after were supported and opposed by counter-affidavits. The parties have also referred to, and incorporated, the original papers upon which the respective attachments were granted in connection with one or more of the pending motions.
After study of the very voluminous affidavits, depositions of parties and witnesses, exhibits and the extensive briefs, I am persuaded that each of the motions made by the respective parties must be denied. These include the following:
(1) Motion by the DeAngelis partnership and Virginia DeAngelis individually for summary judgment dismissing the second count of the complaint;
(2) Motion by Adolf Gobel, Inc., for summary judgment dismissing the second count of the complaint;
(3) Motion by Adolf Gobel, Inc., for summary judgment dismissing the third count of the complaint;
(4) Cross-motion by plaintiff for summary judgment against Anthony DeAngelis in the sum of $ 835,701.80 on the first count;
(5) Counter-motion by Anthony DeAngelis for summary judgment dismissing the said first count;
(6) Motion by Anthony DeAngelis to vacate the attachment against his property obtained upon the first claim.
Motions for Summary Judgment
The lengthy affidavits and other papers submitted by the parties with with their various assertions, denials, cross-charges and the conflicting inferences sought to be drawn from the same facts serve to accentuate the existence of fact issues with respect to each of the claims upon which summary judgment is sought. It is, therefore, not surprising that each litigant in opposing the motion made by the other urges that credibility and demeanor is an important factor making a trial indispensable, and relies upon the oft-cited and leading authority of Arnstein v. Porter, 2 Cir., Cir., 154 F2d 464, 469. To this authority might be added the recent rulings in National Labor Relations Board v. Dinion Coil Company, 2 Cir., 201 F.2d 484, 487-490, and Dyer v. MacDougall, 2 Cir., 201 F.2d 265, which further consider 'demeanor' and its importance in the resolution of fact issues.
With respect to the motion made by the DeAngelis partnership to dismiss the second count of the complaint, the vacatur of the attachment as against it is not dispositive of its present motion for summary judgment. The basis of that determination was the insufficiency of the papers upon which the attachment was obtained. But, as the majority opinion affirming the order of the District Court notes, 'the plaintiff may eventually mend its hold' and, as stated by the District Court (106 F.Supp. 613), 'The profit may exist but it has not been submitted.'
Virginia DeAngelis' affidavit now submitted, reciting the nature and extent of her participation in the various transactions and guarantee arrangements with the Public National Bank and Trust Company and with Messrs. Beane and Mason in connection with her husband's individual indebtedness, the partnership cancellation of the lease to the DeAngelis corporation to which she was a signatory, the subsequent conveyance of the property free of the lease to Adolf Gobel, Inc., may warrant the trier of the facts in drawing an inference that she individually and as a partner knew of, authorized and ratified the acts of her husband, and that these, with these, with her consent and knowledge, were intended to benefit Adolf Gobel, Inc., the partnership as a stockholder therein, and herself.
Her categorical denial that she or the partnership participated in the conspiracy, or that she had knowledge of the representations of her husband, or that she authorized or ratified them, need not necessarily be accepted by the trier of the facts. On the contrary, such denial, as well as her other denials, in the light of all the circumstances, including her membership in the partnership, of which her husband was the only other member, might well lead to ...