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GOLDEN v. GUARANTY ACCEPTANCE CAPITAL CORP.

December 9, 1992

HOWARD I. GOLDEN, Plaintiff,
v.
GUARANTY ACCEPTANCE CAPITAL CORPORATION, Defendant.



The opinion of the court was delivered by: CHARLES H. TENNEY

 TENNEY, District Judge:

 BACKGROUND

 In 1986, Howard I. Golden was a member of the firm Dimas, Golden & Johnson when defendant Guaranty Acceptance Capital Corporation ("GACC") was referred to him as a client. After working together for an unspecified time, GACC's president, Jack T. Zeitman, offered Golden a position of Vice President and counsel of GACC. By his own admission, Zeitman offered plaintiff a salary of $ 100,000 per year. Affidavit of Jack Zeitman in Opposition to the Motion for Summary Judgment, sworn to July 13, 1992 ("Zeitman Aff."), P 3. Golden accepted the offer by means of a written contract, apparently drafted by Golden himself. The contract was signed by Zeitman and Golden on April 9, 1986.

 The contract contained two clauses that are relevant to the motion at hand. The first states that if Golden was dismissed "without just cause" before April 9, 1989, GACC would pay him severance pay equal to his base salary for the prior year, or $ 85,000 if the dismissal was in the first year. "Just cause" is defined in the clause. *fn1" The second clause is a boilerplate merger clause. *fn2"

 GACC began a move to the West Coast in the latter part of 1986. Golden was kept on as an in-house attorney in the New York office to help wind down the company's affairs, during which time he received his full salary. After the New York office was completely closed, GACC employed Golden on a fixed retainer. Zeitman eventually halved and then terminated the retainer. See Zeitman Aff. P 6; Affirmation of Howard I. Golden in Support of Motion for Summary Judgment, sworn to June 1, 1992 ("Golden Aff."), P 7.

 Over the following three years, Golden and Zeitman discussed the issue of Golden's severance pay, but the parties failed to reach a settlement. In April, 1991, plaintiff filed suit in this court.

 DISCUSSION

 I. SUMMARY JUDGMENT

 A moving party is entitled to receive summary judgment as a matter of law when the party demonstrates that no genuine issue as to any material fact exists. F. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion" and mustering the materials that demonstrate the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once a motion for summary judgment has been properly made, the burden is shifted to the nonmoving party who must make a sufficient showing of material facts in dispute. Id. at 323-24. No genuine issue for trial exists if there is insufficient evidence for the jury to render a verdict in favor of the opposing party. Anderson, 477 U.S. at 249. In the context of contracts,

 if an ambiguity in the contract exists, then summary judgment is generally improper, because the principles governing summary judgment "require that where contract language is susceptible of at least two fairly reasonable meanings, the parties have a right to present extrinsic evidence of their intent at the time of contracting."

 Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1097 (2nd Cir. 1992) (quoting Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d. Cir. 1983)).

 "In deciding whether to grant summary judgment all inferences drawn from the materials submitted to the trial court are viewed in a light most favorable to the party opposing the motion. The nonmovant's allegations are taken as true and it receives the benefit of the doubt when its assertions conflict with those of the movant." Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir. 1992). However, "conclusory allegations will not suffice to create a genuine issue. There must be more than a 'scintilla of evidence,' and more than 'some metaphysical doubt as to the material facts.'" Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252 and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). Because the substantive law will identify the material facts, "only disputes ...


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