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October 14, 1976.

TRIGO HNOS., INC., and Casera Foods, Inc., Plaintiffs,

The opinion of the court was delivered by: HAIGHT


HAIGHT, District Judge:

 Under date of July 16, 1976, this Court issued a Memorandum and Order vacating the ex parte writ of attachment which had been obtained by the plaintiffs against the defendants. Familiarity with that memorandum is assumed for the sake of the following opinion.

 There are now pending before the Court three motions, as follows:

 (1) Plaintiffs move for summary judgment on the first and second causes of action alleged in the complaint.

 (2) Plaintiffs move for reargument of the defendants' motion to vacate the order of attachment, and for reinstatement of that order.

 (3) Defendants move for damages, including attorneys' fees, arising out of the original ex parte attachment, which this Court vacated.

 These motions will be disposed of in the order stated above.

 Plaintiffs' Motion for Summary Judgment

 Plaintiffs move, pursuant to Rule 56(a), F.R.C.P., for summary judgment on the first and second causes of action alleged in the complaint.

 The first cause of action alleges that the plaintiffs sold and shipped merchandise to defendant Premium and that there are presently outstanding unpaid invoices for such merchandise in a total amount of $149,690.14.

 The second cause of action, on behalf of plaintiff Casera, against the individual defendants Baez and Romanach, alleges that the individual defendants executed personal guarantees of the credit extended by Casera to the corporate defendant, Premium; that Premium presently owes Casera $134,211.06 (an amount which is included in the $149,690.14 alleged in the first cause of action); and that the individual defendants are liable on their guarantees.

 The basic premise underlying both causes of action is the plaintiffs' characterization of the relationship between the plaintiffs and the defendant Premium. Plaintiff view that relationship as the relatively simple, uncomplicated one between seller and purchaser; between a supplier and a merchant. Thus, in their brief in support of summary judgment, plaintiffs cite a number of cases granting summary judgment "on a claim for goods sold and delivered" (brief, p. 12).

 The cases cited do indeed grant summary judgment on the facts presented; but in each of them, the defendant either asserted no defense at all to the claim established by commercial documents, or attempted to interpret those commercial documents in a manner which was contrary to law, and whose legal fallibility could be perceived by the court from the face of the documents themselves. Thus, in Omark Industries, Inc. v. Lubanko Tool Co., Inc., 266 F.2d 540, 541 (2d Cir. 1959), the Second Circuit held that granting of summary judgment was proper where "plaintiff relies on the purchase orders and invoices to establish its claim, and defendant does not plead any affirmative defense based on those documents." In Metro Corrugated Containers v. Owens-Illinois Glass Co., 185 F. Supp. 359, 361 (E.D.N.Y.1960), the court observed that "there is no denial of the receipt of the goods and the obligation to pay" (emphasis added). In Petroleo Brasileiro S.A. v. Ameropan Oil Corp., 372 F. Supp. 503 (E.D.N.Y.1974), plaintiff recovered on a C.I.F. contract of sale for fuel oil. Defendant, seeking to resist summary judgment, argued that a variation in the contract as to the date of payment for the goods deprived it of its essential characteristics as a C.I.F. contract. The court, directing summary judgment, held that the variation in question was of no legal significance:

 "Since the term is so well understood, any commercially reasonable variation should not be allowed to destroy that meaning." 372 F. Supp. at p. 506.

 In the case at bar, the defendants place an entirely different characterization upon the relationship between the plaintiffs, its principal officer Trigo and the corporate and individual defendants. The defendants contend, in essence, that Premium paid its invoices promptly up to a certain point in time, when Trigo expressed an interest in purchasing a 50% interest in the corporate defendant Premium, so that Premium could become a vital arm of the plaintiffs' efforts to market their food products in the New York area. Against that background, the defendants contend, the subsequent shipments by plaintiffs to defendant Premium (which defendants say were substantially in excess of their own purchase orders) should be regarded as prompted by "the impending acquisition of Premium by Casera" (Romanach affidavit in opposition at para. 5, p. 3). The defendants' basic premise is set forth in the Romanach affidavit, at para. 13, pp. 5-6:

 "On January 19, 1976, Mr. Dionisio Trigo advised Mr. Romanach that since in the near future Premium was going to be an arm of the Trigo organization in New York, he would give instructions to his organization to make such shipments as they though would be appropriate and necessary to firmly establish the Casera brand within this area.

 "We accepted this proposition because we honestly thought that this would be a very good method to enable the Premium company to grow substantially, and even though we were selling one half of the company to outsiders, we felt that in the long run it would be most beneficial to all involved. We were also enthused by the fact that we had already been promised in writing the exclusive distribution of the Casera brand within the area, and we had no reason to believe that this transaction would be abrogated with the repercussions that it has had.

 "14. We believe that the position of plaintiffs in demanding the value of whatever goods they may have shipped is not that of an account stated since said goods were not shipped in contemplation of payment."

 These assertions by defendants are sufficient to distinguish, on their facts, the cases granting summary judgment upon which plaintiffs rely. It does not follow, however, that merely because a party resisting summary judgment alleges the existence of a relationship inconsistent with his adversary's theory of recovery, summary judgment must automatically be denied. Summary judgment is appropriate where, on all the papers, it appears that "there is no genuine issue as to any material fact..." Rule 56(c). The threshold question of whether a genuine issue of a material fact is presented is for the court, in response to the summary judgment motion. If such an issue appears, its resolution is for the triers of the facts, and the case must be tried.

 Both plaintiffs and defendants have submitted lengthy affidavits, and voluminous documentary exhibits in support of their motions for and against summary judgment.

 While each case turns upon its own circumstances, well-recognized guidelines may be found in 6 Moore's Federal Practice (2d Ed. 1976), at paragraph 56.15[4], a discussion captioned "Existence of a Genuine ...

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