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STERLING NATL. BANK & TRUST CO. v. FEDERATED DEPT.

June 19, 1985

STERLING NATIONAL BANK & TRUST COMPANY OF NEW YORK, Plaintiff, against FEDERATED DEPARTMENT STORES, INC., Defendant


The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge :

OPINION AND ORDER

Plaintiff, Sterling National Bank and Trust Company of New York ("Sterling"), claims that defendant Federated Department Stores ("Federated") is liable for goods sold and delivered by Grant & Sloan, Inc. ("G & S"). Sterling factored the accounts receivable of G & S. Plaintiff moved this court for leave to amend their complaint to add a charge of conspiracy to defraud. Defendants cross-moved for summary judgment to dismiss the initial claim. The motion for summary judgment is granted and the motion for leave to amend is denied.

 DISCUSSION

 I. Summary Judgment

 G & S is a furniture manufacturer that sold merchandise to Burdine's, a department store owned by defendant Federated. G & S factored their accounts receivable to Sterling. Factoring is the purchasing of accounts receivable. Sterling seeks to recover $128,609.21 from Federated based on these accounts receivable. The accounts receivable reflect merchandise that Sterling claims was delivered from G & S to a warehouse operated by Best-Way Mini Hall, Inc. ("Best-Way"). Sterling contends that Best-Way was the agent of Burdine's/Federated and that delivery to Best-Way constitutes delivery to Burdine's/Federated.

 Defendant bases its motion to dismiss the initial complaint on a claim that Best-Way was not the agent of Burdine's. To support this claim, defendant submitted the deposition of the president of Best-Way, Jerry Baldwin. The deposition indicated that Best-Way was not the agent of Burdine's. Specifically, Mr. Baldwin stated that Best-Way was paid by G & S, delivered G & S merchandise to G & S customers other than Burdine's, received instructions from G & S, and sent receipts to G & S. Deposition of Jerry Baldwin at 8-10. He also stated that Best-Way didn't "have any contract with Burdine's whatsoever," id. at 10, and that it was working on behalf of G & S as their agent, id. at 11.

 Once evidence supporting judgment in favor of the moving party is introduced, Rule 56(e) requires the non-moving party to respond by setting forth specific facts showing that there is a genuine issue for trial. As stated by the Second Circuit: "[w]hen the movant comes forward with facts showing that his adversary's claim 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 movant's showing or presents countervailing facts." Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972). If he does not do so, summary judgment, if appropriate, shall be entered against him. Fed. R. Civ. P. 56(e).

 Plaintiff has not submitted any affidavit, deposition or other evidence to oppose the evidence offered by defendant. Plaintiff merely refers to the deposition of Jerry Baldwin where it was indicated that Best-Way performed similar services for other vendors who did business with Burdine's, Deposition of Jerry Baldwin at 22-23 and 25-29, and that Best-Way was on a recommended list of direct delivery agents submitted to vendors by Burdine's, id. at 28. This does not present facts that would indicate any agency relationship between Best-Way and Burdine's.

 In its memorandum of law, plaintiff states that the testimony of Mr. Baldwin "is clearly tainted by continuing self-interest and must be discounted in its entirety." Plaintiff's Memorandum of Law at 12. If the credibility of the movant's witness is challenged by the opposing party and specific bases for possible impeachment are shown, summary judgment should be denied. There must, however, be more than mere allegations in a memorandum of law to place credibility in issue and preclude summary judgment; specific facts must be produced. Rinieri v. Scanlon, 254 F. Supp. 469, 474 (S.D.N.Y. 1966); see Vantage Point, Inc. v. Parker Bros., Inc., 529 F. Supp. 1204, 1214 (E.D.N.Y. 1981), aff'd mem., 697 F.2d 301 (2d Cir. 1982).

 Because defendant has introduced evidence that would make plaintiff's claim baseless and plaintiff has failed to come forward with any evidence to indicate that there are material issues of fact, summary judgment in favor of the defendant on the original complaint is appropriate and is hereby granted.

 II. Amendment of Complaint.

 Plaintiff moves to amend the complaint to include a claim of conspiracy to defraud. *fn1" The claim involves a Direct Delivery Procedures Agreement ("DDPA") entered into between Burdine's and G & S. Plaintiff contends that the effect of the DDPA was to shift the responsibility for delivering G & S merchandise and to defer payment by Burdine's until merchandise had been delivered to customers even if Burdine's had already been paid by the customer. Plaintiff further contends that G & S and Burdine's did not disclose ...


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