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NORTHWESTERN NATL. INS. CO. v. ALBERTS

June 7, 1993

NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE, WISCONSIN, Plaintiff,
v.
MICHAEL J. ALBERTS, JAMES R. ALBERTS, CASSANDRA M. SHEEHAN, RAYMOND COSGROVE, PENELOPE A. BOYLE, JOHN C. MAUCERE, JERRY SILVA, MICHAEL L. METHENY, H.U.A. RESOURCES, INC., ALTON JONES, ARTHUR LAWSON, JOHN J. MULLER, MICHAEL J. O'CONNELL, RANDOLPH K. PACE, SOUTHERN COMPANIES, INC., MICHAEL J. McCANN, WILLIAM CURRAN, JAMES M. McCABE, HAROLD A. THAU, PATRICK J. ROONEY, VAN ALLEN CAPITAL CORP., and ROBERT T. NORTON, Defendants. RAYMOND COSGROVE, WILLIAM CURRAN, JAMES M. McCABE, JOHN J. MULLER, ROBERT T. NORTON and HAROLD A. THAU, Counterclaim Plaintiffs, v. NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE, WISCONSIN, and ALLAN ESRINE (a/k/a IVAN EZRINE), Counterclaim Defendants.



The opinion of the court was delivered by: ROBERT W. SWEET

 Sweet, D. J.

 Plaintiff and counterclaim defendant Northwestern National Insurance Company ("Northwestern") has moved pursuant to Rule 56, Fed. R. Civ. P., for summary judgment against defendant pro se Patrick J. Rooney ("Rooney") as to liability on Northwestern's claims against him. For the reasons set forth below, this motion is granted.

 Background

 The underlying facts, the claims at issue, and the prior proceedings in this action are set forth in detail in this Court's prior opinions, familiarity with which is assumed. See Northwestern Nat. Ins. Co. v. Alberts, 769 F. Supp. 498 (S.D.N.Y. 1991); Northwestern Nat. Ins. Co. v. Alberts, 741 F. Supp. 424 (S.D.N.Y. 1990); Northwestern Nat. Ins. Co. v. Alberts, 717 F. Supp. 148 (S.D.N.Y. 1989). Only those facts relevant to the present motion are set forth below.

 By letter dated February 19, 1993, Northwestern renewed the Rule 56 motion as to Rooney, and it was taken on submission on March 17, 1993.

 The Material Undisputed Facts

 Rooney executed an Assumption Agreement in favor of The Merchants Bank whereby he assumed the obligation to repay the Southern Reserve, Inc. ("Reserve") indebtedness to The Merchants Bank. *fn1" Rooney executed an Agreement With Surety in favor of Northwestern whereby he requested that Northwestern issue a surety bond guaranteeing his obligations to The Merchants Bank and agreed to indemnify Northwestern against all loss, cost, and expense, including attorney's fees, incurred by reason of Northwestern issuing such surety bonds.

 Rooney then defaulted in making payments due under his Assumption Agreement to The Merchants Bank. As a result, Northwestern was required to make payment of the entire $ 6,854,000 principal amount plus accrued interest in respect of The Merchants Bank debt.

 On April 14, 1989, the bankruptcy trustee of Reserve abandoned the pipeline to Northwestern.

 Rooney has failed to reimburse Northwestern for its loss, cost, and expense in violation of the terms and conditions of the Agreement With Surety.

 Discussion

 I. Rule 56 Standards for Summary ...


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