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KOUS-TV, INC. v. SPOT TIME

October 10, 1984

KOUS-TV, INC., Plaintiff,
v.
SPOT TIME, LTD., Carmine Patti, Bankers Trust Co., Bank of New York and Dancer Fitzgerald Sample, Inc., Defendants.



The opinion of the court was delivered by: MACMAHON

MEMORANDUM and ORDER

MacMAHON, District Judge.

 Plaintiff moves for summary judgment against all defendants, pursuant to Fed.R.Civ.P. 56(a). Defendant Carmine Patti ("Patti") cross-moves for summary judgment against plaintiff. Defendant Bankers Trust Co. moves for summary judgment on its cross-claim against the Bank of New York.

 Background

 This is an action based on the alleged conversion of two checks, issued by Dancer Fitzgerald Sample, Inc. ("Dancer Fitzgerald") and payable to plaintiff. The following facts are not in dispute:

 Plaintiff KOUS-TV, a television station operating in Montana, and defendant Spot Time, Ltd. ("Spot Time"), a New York corporation, entered into a contract whereby Spot Time agreed to place advertising on KOUS-TV in return for a commission. Defendant Patti, president of Spot Time, received two checks, payable to KOUS-TV, in the amounts of $3,145.00 and $9,877.00, and drawn on Dancer Fitzgerald's account at Bankers Trust Co. Patti endorsed the checks to "Spot Time, Ltd." and cashed them at the Bank of New York. To date, KOUS-TV has not received the money owed to it by Dancer Fitzgerald.

 Plaintiff alleges that defendants are indebted to it in the amount of $13,022.00. The essence of its claim is that Patti erroneously endorsed the two checks, that defendant banks unlawfully accepted and paid the checks, and that Patti and Spot Time have subsequently converted plaintiff's funds to their own use.

 Plaintiff's Motion for Summary Judgment against Spot Time.

 In support of its motion for summary judgment, KOUS-TV has submitted copies of the two checks, payable to KOUS-TV and endorsed by Spot Time, and the contract between KOUS-TV and Spot Time. The relevant provision of the contract states:

 The billing of all advertisers will be handled by Station KOUS-TV and upon collection, Station KOUS-TV will pay Spot Time, Ltd. a 15% commission on the net proceeds to the station.

 The contract says nothing about Patti's or Spot Time's authority to bill and collect for KOUS-TV, much less to endorse and cash checks payable to KOUS-TV.

 Patti, nevertheless, contends that, pursuant to "the agreement" between the two companies, Spot Time had authority to bill and collect for the station. He also asserts that he personally had authority to endorse and negotiate checks payable to KOUS-TV. Patti, however, has presented no evidence in support of these contentions. For example, he refers to an agreement which granted Spot Time certain authority, but he submits no such agreement.

 These bare assertions are insufficient to raise a genuine issue of fact. A litigant opposing summary judgment may not rest upon mere conclusory allegations or denials. Rather, pursuant to Fed.R.Civ.P. 56(a), he is obliged to set forth "concrete particulars" which establish that his version of the facts is not fanciful. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). Here, no specific facts have been submitted by Spot Time to raise an issue as to its authority to endorse or cash checks payable to KOUS-TV. To the contrary, the contract clearly states that KOUS-TV would itself handle all billing and after collection pay any commission owed to Spot Time.

 Given these considerations, we conclude that Spot Time acted without authority in endorsing and cashing these checks, and, since it failed to remit the proceeds to KOUS-TV, is liable ...


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