The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
Jones moves for summary judgment pursuant to Fed.R. Civ.P. 56 with respect to the following claims:
1) Wide World's retention of the $ 50,000 deposit constitutes common law conversion,
2) Wide World's retention of the $ 50,000 deposit constitutes a violation of N.Y. Gen. Bus. Law § 396-p(3), which requires, among other things, that retail dealers of new automobiles provide their customers with a written form stipulating that preliminary deposits are fully refundable,
3) Wide World engaged in false and deceptive advertising in violation of N.Y. Gen. Bus. Law § 350, and
4) Wide World engaged in deceptive business practices in violation of N.Y. Gen. Bus. Law § 349.
In addition to restitution of the deposit with interest, Jones seeks to recover compensatory damages, treble damages pursuant to N.Y. Gen. Bus. Law § 349(h), punitive damages and attorneys' fees. Jones also moves to sanction Wide World's president, Alberto Pedretti ("Pedretti"), and opposing counsel under Fed.R.Civ.P. 11.
Wide World challenges the existence of diversity of citizenship pursuant to 28 USC § 1332, and seeks to amend its answer pursuant to Fed. R.Civ.P. 13(f), to include a counterclaim for damages resulting from Jones' repudiation of the alleged purchase contract. Jones opposed Wide World's motion to amend by affidavit dated January 19, 1993. Wide World's attorney replied in turn by submitting an affidavit dated January 28, 1993 containing inflammatory accusations, signalling the current highwater mark in a rising sea of animosity.
I grant Jones' summary judgment motion insofar it seeks a ruling that he is entitled to the return by Wide World of his $ 50,000 deposit. In other respects, I deny Jones' motions without prejudice as premature. Wide World's motions to dismiss for lack of diversity of citizenship and to amend its answer to add a counterclaim for breach of contract are denied; I conclude that diversity exists and that no binding contract was entered into.
In August 1990 Wide World placed an advertisement in the Ferrari Market Letter which stated in relevant part:
Every new Ferrari sold by Wide World of
Cars has been delivered at FACTORY LIST
After reading this advertisement, Jones contacted Pedretti by telephone on August 17, 1990 to discuss purchasing an F40, a limited-production,
high performance sports car.
Although the parties sharply disagree over what terms, if any, they discussed or agreed upon during this conversation, on August 21, 1990 Jones wired a $ 50,000 deposit to Wide World. Approximately one week later Wide World mailed a purchase order to Jones dated August 27, 1990 which stated near the top of the page:
"THIS AGREEMENT IS NOT BINDING UNLESS SIGNED BY THE SELLER AND THE BUYER."
The form indicated that the price for the car was $ 800,000, approximately twice the F40's factory list price.