The opinion of the court was delivered by: WHITMAN KNAPP
We have before us plaintiff's affidavit and attached exhibits submitted to complete the record in accordance with the permission granted in our July 31 Opinion and Order. We construe this affidavit as a motion for reargument. Plaintiff identifies three specific errors it considers appropriate for reconsideration. We address them in turn.
1. At pages 67-68 of our Opinion, we referred to statements made by plaintiff's counsel that led us to conclude that, for all practical purposes, they had abandoned any claim based on possible errors by defendant in the issuance of the classification certificate. Plaintiff now submits pages extracted from its various briefs and affidavits to establish that such claim was not technically abandoned. We agree that these pages do establish that proposition. However, plaintiff does not call our attention to to any evidence -- and we know of none -- suggesting that it was in any way damaged by possible errors in issuing that particular certificate. Summary Judgment should not be denied because of the theoretical possibility of an issue of fact. See Delaware & Hudson Railway v. Consolidated Rail Corp. (2d Cir. 1990) 902 F.2d 174, 178 ("Conclusory allegations will not suffice to create a genuine issue. There must be more than . . . 'some metaphysical doubt as to the material facts.'") (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. (1986) 475 U.S. 574, 586).
2. With respect to the respondeat at superior aspect of Part (4) of our Opinion treating defendant's claimed immunity under Bahamas law, we have carefully considered the views expressed in the affidavit of Mr. Scott now submitted by plaintiff. It is, in the first place, difficult to understand why plaintiff's counsel did not elicit these views at the April 23 hearing when Mr. Scott was on the witness stand and Sir Leonard was available either to rebut his views or to assist defense counsel in cross-examining him. Be that as it may, the affidavit does not persuade us that Sir Leonard's testimony was not reliable, or that we committed error in accepting it.
3. At page 53 of our Opinion we characterized as "frivolous" plaintiff's contention that the invoices sent to it by defendant had modified the Agreement between the parties. We adhere to that characterization. At page 2 of the affidavit now submitted by its counsel, plaintiff asserts:
That he [Sjogren] could not remember the details of those terms when he testified eight years later is not evidence that he was not aware what they were at the time he reviewed them. (Emphasis in original).
Plaintiff seems to overlook the fact that, having originally established the existence of the Agreement between the parties, it has the burden of persuading us that it was subsequently modified. See Delaware, 902 F.2d at 177-78 ("The non-movant, however, who must sustain the ultimate burden of proof, must demonstrate in opposing a summary judgment motion that there is some evidence which would create a genuine issue of material fact."). What actually occurred during the Sjogren deposition (which was offered on plaintiff's behalf) is that counsel doggedly attempted by long and torturous examination with leading questions to induce him to say something from which an intent to modify the Agreement could be inferred. He succeeded only in getting Sjogren to volunteer that the "terms and conditions" of the invoices in question "are more or less the same terms and conditions for the [original] contract."
We accordingly deny plaintiff's motion for reargument, and direct the Clerk to enter judgment dismissing the complaint.