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January 22, 1992


The opinion of the court was delivered by: JOHN F. KEENAN

 JOHN F. KEENAN, United States District Judge:


 This lawsuit is a contest between two financial heavyweights to secure title to further wealth. The three corporate defendants *fn1" and William D. Cayton, Mike Tyson's manager, have moved for summary judgment on counts II through VII of Tyson's Third Amended Complaint. *fn2" Those counts seek rescission of all contracts between plaintiff and defendants, as well as full restitution of all monies Cayton earned under those contracts. Tyson has cross-moved for summary judgment on Counts II through VI, asserting that his winning on those counts would moot Count VII. Further, Tyson has moved for summary judgment on all of defendants' counterclaims, which seek to enforce the contracts between the defendants and Tyson. For the reasons that follow, defendants' motion for partial summary judgment is granted in part and denied in part. Tyson's cross-motion for partial summary judgment on the complaint and on defendants' counterclaims is denied.


 In June 1988, Tyson filed a lawsuit against Cayton in New York Supreme Court, seeking rescission of their fourth boxer-manager contract *fn3" on the ground that he had been fraudulently induced to sign it and that Cayton had breached his fiduciary duties. See Tyson v. Cayton, Index No. 12888/88 (New York Sup. Ct. August 15, 1988), at Puccio Aff. para. 8, Ex. 6. The parties dismissed that case with prejudice in July 1988, see Puccio Aff. paras. 13-15, Exs. 3-4, after executing a written settlement agreement on July 25, 1988 and a new boxer-manager contract ("Boxer-Manager Contract No. 5") on July 27, 1988. As part of the settlement, Tyson and Cayton executed Boxer-Manager Contract No. 5, which decreased Cayton's share of Tyson's boxing earnings from 33.3%, as provided in Contract No. 4, to 20%. Further, the parties executed a new personal manager contract, *fn4" making the relationship non-exclusive and reducing Cayton's share of Tyson's non-boxing earnings from 33.3% to 16.6% for renewal commercials and 10% for new commercials. Four months later, Tyson filed this lawsuit, seeking to rescind the settlement agreement, Personal Manager Contract No. 2, a film rights agreement between Cayton and Tyson, *fn5" Boxer-Manager Contract No. 4, and all other contracts between Tyson and the defendants. After the parties cross-moved for partial summary judgment, oral argument was heard on December 18, 1991.


 Federal Rule of Civil Procedure 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A motion for summary judgment may be granted under Rule 56 if the entire record demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When viewing the evidence, the Court must "assess the record in the light most favorable to the non-movant and . draw all reasonable inferences in its favor." Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990); see Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989). Summary judgment is appropriate if "'no reasonable trier of fact could find in favor of the non-moving party.'" United States v. All Right, Title & Interest in Real Property, etc., 901 F.2d 288, 290 (2d Cir. 1990) (quoting Murray v. National Broadcasting Co., Inc., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 109 S. Ct. 391, 102 L. Ed. 2d 380 (1988)). In making this determination, the district court may not resolve issues of fact; it may only ascertain whether such issues are present. See Donahue v. Windsor Locks Bd. of Fire Cm'rs, 834 F.2d 54, 58 (2d Cir. 1987). In response to a properly supported motion for summary judgment, the non-movant may not rest on the allegations in its pleadings, but must adduce "significant probative supporting evidence" demonstrating that a factual dispute exists. Anderson, 477 U.S. at 249.

 The motion papers are saturated with factual disputes that often boil down to a swearing contest between the litigants. For this reason, summary judgment is inappropriate on many of the counts. The opinion will address each count of the complaint in turn. *fn6"


 Count II of the Third Amended Complaint alleges that Cayton fraudulently induced Tyson to enter into the July 1988 Settlement Agreement and Boxer-Manager Contract No. 5, thereby entitling Tyson to rescission. See Third Amended Complaint para. 61. Tyson alleges that Cayton fraudulently induced him to sign the contracts by making seven material misrepresentations and by fraudulently concealing ten material facts during the settlement negotiations. See Third Amended Complaint para. 54 (a) - (g), para. 59 (a) - (j). The misrepresentation and concealment claims will be treated separately.

 1. Fraudulent Misrepresentation

 Cayton denies that he made any of the seven misrepresentations that Tyson alleges. *fn7" He asserts that Tyson's claim of fraudulent misrepresentation must fail because there is no evidence that Cayton made any of these representations. See Cayton Mem. at 9. Even if the statements had been made, Cayton argues, they are not statements of material fact. Cayton also asserts that there is no evidence that he intended not to perform in accordance with the alleged representations, and finally that Tyson did not rely on these representations in settling the litigation. See Cayton Mem. at 17 (citing Tyson Dep., April 4, 1991, pp. 117-119, 135-140).

 Tyson's Opposition and Cross Motion fails to respond to these arguments. It addresses only Count II's fraudulent concealment allegation, para. 59 (a) - (j), omitting any discussion of Count II's fraudulent misrepresentation allegation, para. 54 (a) - (g). Tyson himself has denied or is unable to recall that Cayton made any of the misrepresentations that Tyson alleged in his complaint. Thus, plaintiff did not dispute paragraph 63 of Cayton's 3(g) statement, which asserted: "At Tyson's deposition, each alleged representation of Count II, para. 54(a) through (g) was read to Tyson, and he stated either that Cayton did not make such a representation or that he (Tyson) could not remember it." See Plaintiff's Response to Defendants's Rule 3(g) Statement para. 63 ("Not disputed"). Therefore, the undisputed evidence is that the alleged representations were not made. See Tyson Dep., Jan. 9, 1989 pp. 196-203; Winston Dep., April 15, 1991 p. 32, 34; Puccio Aff., paras. 12, 13; Cayton Aff., paras. 78, 83. Because Tyson has failed to provide any evidence that Cayton made fraudulent oral representations during the settlement negotiations, Cayton's motion for summary judgment on paragraph 54 (a) - (g) of Count II is granted.

 2. Fraudulent Concealment

 Paragraph 59 of Tyson's Third Amended Complaint alleges that Cayton fraudulently concealed ten material facts that would have led Tyson to reject the July 1988 settlement agreement and Boxer-Manager Contract No. 5 *fn8" Tyson therefore argues ...

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