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HANAM v. KITTAY

May 7, 1984

HANAM, B.V., a Netherlands Limited Liability Company, and IFICOR INVESTMENTS, N.V., a Netherlands Antilles Limited Liability Company, Plaintiffs, v FRIEDA KITTAY, individually and in her capacity as executrix of the ESTATE OF SOL KITTAY, JEFFREY KITTAY, in his capacity as executor of the ESTATE OF SOL KITTAY, and ARLYNE J. IMBERMAN, in her capacity as executrix of the ESTATE OF SOL KITTAY, Defendants.


The opinion of the court was delivered by: POLLACK

MILTON POLLACK, Senior District Judge

Plaintiff has moved for partial summary judgment under Rule 56 Fed. R. Civ. P. on three negotiable promissory notes dated March 2, 1982, issued by Sol Kittay. The maker died three months later, on June 10, 1982. The notes have since matured. This is peculiarly a case for the use of Rule 56 to strain out fictitious and unworthy defenses to promissory notes used for dilatory purposes.

 The guiding principle is set forth in Rule 56(e) of the Federal Rules of Civil Procedure which provides that:

 When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (Emphasis added).

 When these sentences were added to Rule 56 in 1963, the Advisory Committee noted that:

 The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.

 Advisory Committee Note, Proposed Amendments to Rules of Civil Procedure for the United States District Courts, 31 F.R.D. 648-49 (1962).

 As Judge Friendly has stated:

 When the movant comes forward with facts showing that his adersary's case is baseless, the opponent cannot rest on the allegations of the complaint but must adduce factual material which raises a substantial question of the veracity or completeness of the ovant's showing or presents countervailing facts.

 Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972). See also Schneider v. McKesson & Robbins, Inc., 254 F.2d 827, 831 (2d Cir. 1958). The law in this Circuit is clear that even where there are allegations of illegality, "summary judgment cannot be defeated by the vague hope that something may turn up at trial." Perma Research and Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969).

 In this case, opposition to summary judgment apparently is predicated on the belief that the Kittay estate may avoid summary judgment by offering conjectures, unsupported by any fact of evidentiary value in a multitude of irrelevant suppositions and innuendo contained in prolix affidavits and over 100 pages of memoranda of law. None of these raise an issue of fact sufficient to defeat the motion for summary judgment. The frolic and detour into the back history of Kittay's business relationships afford no defense to the contractual obligations undertaken and the negotiable instruments emanating therefrom and sued upon herein. Indeed, it may properly be said that it was wholly inappropriate to levy on plaintiff the massive harassment, obstruction, and expense in bringing this case to summary judgment.

 The Obligations Involved

 The defendant have conceded the following:

 Sol Kittay resided in Portchester, New York, from May 22, 1974, through his death on June 10, 1982. Pursuant to letter agreements dated May 22, 1974, Kittay borrowed $2,450,000 from Banque Commciale (Cayman) Ltd., and $5,310,280 from Associated Trust S.A. Each loan is evidenced by a letter agreement betwen the parties and a promissory note signed by Kittay.

 Pursuant to writings dated October 17, 1975, both loans were assigned with the consent of Sol Kittay. Associated Trust assigned its loan, together with the underlying collateral and pledge agreement, to Etablissement Pacodela. The Banque Commerciale loan, together with the collateral and pledge agreement, was assigned to Etablissement Stitac ("Stitac"), and in connection with the assignment, Kittay issued two new promissory notes payable at the Royal Bank of Canada in Georgetown, Cayman islands, B.W.I.

 Pursuant to an agreement dated March 2, 1982, the aggregate indebtedness of Kittay to Banque Commerciale, Pacodela, and Stitac, amounting to $8,571,534.95, was sold, assigned and transferred to the plaintiff, Hanam B.V., a limited liability company organized under the laws of the Netherlands. The transaction is expressed in a written agreement signed by all the parties, and an estoppel certificate signed by Kittay attached to the agreement reads:

 I, the undersigned, Sol Kittay, hereby confirm and agree to all the terms hereinabove set out, and in particular to the sale, assignment, and transfer to the Buyer as outlined above.

 I also confirm that all amounts previously paid by me on account have, by mutual agreement, been applied firstly in recoupment of charges and expenses, secondly in repayment of principal and only the balance on account of interest, such interest being compounded quarterly.

 Dated this 2nd day of March, 1982.

 The agreement of sales recites in whereas (Illegible Word) that Kittay is indebted in the amounts listed in Schedule "A" appended; that Kittay's liability as set forth in that schedule was secured by the collateral in a Schedule "B"; that the parties had agreed that the Kittay indebtedness and the collateral should be sold, assigned, and transferred without recourse by the creditors to Hanam; and that the creditors, the buyer, with the consent of Kittay, had agreed that Hanam should receive from Kittay concurrently with the execution and delivery of the agreement, four promissory notes, three of which for $2,142,883.70, and the last one for $2,142,883.85, made by Kittay in favor of Hanam as evidence of Kittay's indebtedness referred to in Schedule "A" attached, (in capital, interest, charges, and out-of-pocket expenses) for the purpose of repaying the total amounts so due as aforesaid, and maturing on the 20th March, 1982, the 20th January, 1983, the 20th January, 1984, the 20th January, 1985, respectively."

 In open court, at a hearing held on March 14, 1984, when the motion for summary judgment was initially to be heard in response to inquiries from the Court, counsel for the defendant stated that:

 Based on my investigation, it did not appear to me that there was any question that he signed the notes, no question whatsoever. They were delivered. The documentation is there. There is no question about authenticity.

 The Court reminded counsel for the defendants that counsel had said in his brief that "the defendants have not had an opportunity to discover that an issue for trial exists;" and "There is not a single fact in any of these papers that indicates that the agreement of March, 1982 was conditionally delivered with no intent to pay. Not a single person has averred that statement." In response counsel stated, "Sol Kittay is dead." Your Honor, there is no one available to us."

 Nonetheless counsel for the defendants requested a further opportunity beyond the deadline for discovery completion, namely, until April 16, 1984, to conduct still further discovery proceedings, and to take depositions. In view of allegations that had been brought to the Court's attention about alleged fraudulent conveyances of vast sums of money and property that took place between the decedent and his wife shortly before Kittay's death, the Court sought assurance that there would be a total freeze on the conditions as they existed at the time of the motion until the defendants were ready to go on with the motion. The plaintiffs had contended that during the time that it took this case to unwind and get to the ultimate evidentiary hearing, the plaintiffs were losing their position unfairly by the possibility that assets from the estate, or diversion of assets from the widow, to the prejudice of the plaintiff, might occur. Accordingly, the Court stated that its concern was that the status quo be maintained and that the condition for adjournment of the summary judgment hearing be that the Estate of Sol Kittay would not make any distributions of any kind without the consent of the plaintiff or Order of the Court until the decision of the summary judgment motion. Counsel thereupon assured the Court "We have communicated by telephone with representatives of the estate and have been assured that that is certainly doable and will be complied with." The hearing of the motion for summary judgment was thereupon adjourned and ...


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