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April 17, 1997


The opinion of the court was delivered by: GERSHON

 GERSHON, United States District Judge:

 Plaintiff Regent Partners, Inc. ("Regent") brings this action for breach of contract and account stated against defendants Parr Development Company, Inc. ("PDC") and Ronald Parr under this Court's diversity jurisdiction. Regent seeks reimbursement for payments it made to a third party in connection with a failed real estate development transaction. Discovery has been completed, and Regent now seeks summary judgment against PDC. As will be seen, there is no dispute between the parties as to the existence of a contract or its terms. Rather, the central question is whether PDC can establish issues of fact as to its affirmative defenses of duress and oral modification of the contract.


 Except as otherwise indicated, the following facts are undisputed. Both Regent and PDC are real estate development firms. Regent is a Georgia corporation with its principal place of business in Atlanta, and PDC is a New York corporation with its principal place of business in Ronkonkoma, New York. David Allman is the president of Regent, and Ronald Parr is the president and sole shareholder of PDC.

 A. The Rise and Fall of the Olympus Project.

 This case arises from the parties' efforts to build a new corporate headquarters building for Olympus America, Inc. ("Olympus"), a large firm primarily engaged in the manufacture of photographic equipment. Mr. Parr and PDC had been successful in interesting Olympus in a Melville, Long Island site for the building. However, in early 1993 it became apparent that the originally contemplated funding for the project would not be available and that alternate sources of capital would be needed in order to develop the Melville site. Mr. Parr thus began a widespread search for additional financing. Eventually he was referred to Regent and, on April 28, 1993, Regent and PDC entered into a "letter of intent" regarding the financing of the Olympus project. Pursuant to this agreement, PDC was to remain as the "lead developer" on the Olympus project while Regent was to obtain funds for the project in the form of a letter of credit or a construction loan. *fn1"

 Regent was successful in attracting the interest of at least two banks in the Olympus project. One of these was the New York office of a German bank, Westdeutsche Landesbank Girozentrale ("WestLB"). The dispute between the parties arises from conditions laid down by WestLB in a June 9, 1993 letter to both Regent and PDC before WestLB would consider issuing a letter of credit for the Olympus project.

 Shortly thereafter, the Olympus project ran into a sea of troubles. During the first half of July 1993 two lawsuits were filed by local residents and municipal officials challenging the construction of the new corporate headquarters in Melville. All of the principals involved in the project recognized that the lawsuits cast serious doubt upon the chances that the transaction would close in August 1993, as originally scheduled.

 "As a result of the continued uncertainty with regard to whether the project could close. . .Regent [became unwilling] to incur the costs and expenses associated with paying the required structuring fees and out-of-pocket expenses to WestLB without an agreement by Parr Development to reimburse Regent for its costs and expenses if the project failed to close." Allman Aff. at P 14. Accordingly, on July 14, 1993 Mr. Allman sent a proposed letter agreement via facsimile to Mr. Parr. Stating that "Regent is unwilling to incur" WestLB's costs and expenses, the letter set forth the following terms with respect to the payment of those fees:

In consideration of Regent's agreeing to continue efforts to consummate the [Olympus] Transaction, you have agreed, and this letter shall confirm that you hereby agree, that if the Transaction between Regent and Parr shall fail to close, then you will reimburse Regent, as herein provided, all direct out-of-pocket costs and expenses that Regent is required to pay [WestLB] in connection with its efforts to consummate the Transaction....

 Mr. Parr signed the letter agreement on behalf of PDC on July 14, 1993 without making any changes to the text of the agreement. He returned the signed document to Mr. Allman via facsimile on the same day. There is no claim by PDC that Regent did not continue its efforts on behalf of the Olympus project after the July 14, 1993 agreement was executed.

 As it happened, the apprehensions engendered by the lawsuits filed against the Olympus project were well-founded. The August 1993 closing date was not met, and, on September 2, 1993, the president of Olympus wrote to Mr. Parr to inform him that the firm had decided to abandon the Melville development and seek another site for its new headquarters.

 In response to this news, PDC attempted to enlist Regent's aid in interesting WestLB in providing financing for the possible development of another site on Long Island for the Olympus headquarters building. Specifically, on September 28, 1993 Guy Germano, PDC's Executive Vice President and General Counsel, wrote to Mr. Allman requesting that Regent approach WestLB in order to get WestLB to sign a letter declaring their willingness to finance construction at an alternate site. The record does not disclose whether or not Mr. Allman contacted WestLB but, in any event, the development of another Long Island site did not occur.

 B. The Aftermath.

 By February 1994, Regent had paid $ 134,450.00 to WestLB to reimburse the bank for fees and expenses it had incurred in 1993 with respect to the Olympus project. These charges included financing fees, as well as legal and consulting fees. Summarized below are four communications sent by Regent or its agent to PDC seeking reimbursement:

1. In a letter of November 8, 1993 to Mr. Germano of PDC, Regent enclosed copies of invoices from WestLB for fees and expenses in the amount of $ 146,946.24 and requested reimbursement "pursuant to our agreement with you."
2. On June 23, 1994 Regent wrote to Mr. Parr seeking reimbursement in the amount of $ 134,450.00, the reduced figure being accounted for by the agreement of WestLB's outside counsel to write off certain of its charges. The fees and expenses incurred by WestLB were itemized and Regent again reminded PDC of the July 14, 1993 letter agreement in which "you agreed to reimburse Regent Partners, Inc. upon demand the amount of all third party direct costs and expenses."
3. Regent then turned the matter over to its outside counsel. On August 24, 1994 its law firm wrote to Mr. Parr by certified mail. Mr. Parr was yet again reminded that "you agreed to reimburse Regent for all direct out-of-pocket cost [ sic ] and expenses Regent incurred in connection with negotiating the terms of a credit facility" for the Olympus project.
4. Regent's law firm wrote to Mr. Parr by certified mail a final time on October 6, 1994. This time, Mr. Parr was informed emphatically that the reimbursement obligation was "personal, absolute, uncontroverted, immediate and without excuse." Further, the filing of suit was threatened in ten days of the date of the letter if payment were not received.

 PDC made no written response to any of these four communications. Regent filed this ...

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