contains inconsistencies which raise material issues of fact.
Specifically, in its Opinion and Order dated October 28, 1994 (the "Opinion"), the Court identified two areas of inconsistency. The Court held that "summary judgment is inappropriate in this case because plaintiff has shown that a material issue of fact exists as to whether or not [Defendant Crestmanor Homes Inc. ("CHI")] [(1)] held the advice of credit and [(2)] was required to present the document each time it sought payment under the advice of credit." See Opinion & Order, Oct. 28, 1994, at 11.
Defendant points to no unexplored areas of the prior testimony or exhibits to clarify either point. As to IDB's possession of the Advice of Credit, the testimony is unclear as to whom at IDB, if anyone, transmitted the Advice of Credit to CHI, as IDB claims. Some of the testimony suggests that if such transfer occurred, it was effected by Mr. Rosenwasser, an IDB loan officer, while other testimony suggests someone in either the Letter of Credit Department or the Credit Department.
The additional indefiniteness in the testimony concerning presentment of the Advice further muddies the issue of whether IDB ever transmitted the Advice to CHI. The testimony is unclear as to whom at IDB, if anyone, received the Advice from CHI prior to issuing the second and third payments, and as to whom, if anyone, returned the Advice to IDB after each transaction.
Because Defendant has failed to present any factual showing that the Court overlooked in reaching its original finding that there are inconsistencies in the testimony of IDB employees creating material issues of fact for trial, the Court hereby denies Defendant's motion to reargue.
Plaintiff, Weyerhaeuser Company, cross-moves pursuant to Fed. R. Civ. P. 60(a) for correction of the portion of the Opinion noting that Plaintiff seeks a judgment that it is entitled to "48.75 percent of [the first and second] payments [under the Letter of Credit], less $ 138,861.56, which CHI apparently paid to plaintiff from the second payment. " Opinion & Order, Oct. 28, 1994, at 6 (emphasis added). Plaintiff claims the $ 138,861.56 payment was intended to reduce CHI's large outstanding receivable with IDB and not, as Defendant claims and as the Court's opinion suggests, a portion of IDB's entitlement under the Letter of Credit. The Court notes only that Plaintiff admitted in its original complaint the receipt of $ 138,861.56 from CHI. See Compl. at 4. Inasmuch as clarification is necessary, the Court hereby grants Plaintiff's motion for correction. The Court amends its earlier Opinion and Order to reflect no determination as to whether the funds constituted payment under the Letter of Credit. That issue is properly left for determination by the trier of fact upon full presentation by the parties.
For the reasons discussed above, Defendant's motion for reargument is denied, and Plaintiff's motion for correction is granted as indicated. Parties are reminded that this action has been transferred to the active docket of Judge Koeltl, and that all further communications should be directed to Judge Koeltl's chambers.
Dated: New York, New York
December 6, 1994
JOHN F. KEENAN
UNITED STATES DISTRICT JUDGE
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