in connection with future transactions. Indeed, provisions providing such protection would not make economic or political sense.
Transfer or assignment of the indemnity arrangement between the FDIC and the purchaser of a troubled bank would, of course, expose the FDIC to dealing with a downstream assignee. Involved would be complex issues, such as whether assets in connection with which claims were made by the assignee under the indemnity arrangement originated in whole, or in part, or not at all, with the institution sold by the FDIC. This would entail such a risk of expensive and uncertain litigation that I decline to assume that a contract between the FDIC and a buyer of bank assets provides such downstream indemnity unless provision for such indemnity can be fairly implied from the language of the contract itself.
An unequivocal statement that an agreement is "not . . . assignable" operates to make any assignment ineffective. See General Electric Credit Corp v. Xerox, 112 AD2d 30, 490 N.Y.S.2d 407 (4th Dept 1985); Sullivan v. International Fidelity Ins Co, 96 AD2d 555, 465 N.Y.S.2d 235 (2d Dept 1983); Sacks v. Neptune Meter Co, 144 Misc. 70, 258 N.Y.S. 254, 256, 263 (Sup.Ct. N.Y. Co. 1932), aff'd 238 A.D. 82, 263 N.Y.S. 462 (1st Dept 1933); Hollywood Plays v. Columbia Pictures Corp, 77 N.Y.S.2d 568, 577 (Sup Ct NY Co 1947), aff'd 274 App Div 912, 83 N.Y.S.2d 302 (1st Dept 1948), rev'd on other grounds 299 NY 61, 85 N.E.2d 865. Even if an anti-assignment provision were deemed a mere covenant not to assign, it would be enforceable against an actual signatory of the agreement; in the agreement before me it is enforceable against Fidata.
A motion for summary judgment may challenge the party with the burden of proof to establish sufficient basis for its claim to show a genuine issue of material fact. Celotex Corp v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In this instance Fidata, although the moving party, has the burden of proof and has failed to pinpoint any specific indemnity payments now due or likely to become due to it under its agreements with FDIC.
Fidata's affidavits are sworn to by counsel rather than personnel able to swear to facts from direct personal knowledge. The affidavits are accompanied by exhibits which on their face do not show any liability on the part of FDIC, nor has Fidata attempted to explain in any of its papers how its exhibits establish such liability.
I suggest consideration of a stipulation dismissing this case without prejudice.
Dated: White Plains, New York
July 14, 1993
VINCENT L. BRODERICK, U.S.D.J.