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AINI v. SUN TAIYANG CO.

September 30, 1997

CHARLES AINI, et al., Plaintiffs, against SUN TAIYANG CO., LTD., et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 These actions involve, among other things, conflicting claims of ownership and infringement of the trademark TOPICLEAR as applied to certain cosmetic products as well as a claim by the defendants for goods sold and delivered. All issues save for damages for alleged trademark infringement were tried in December 1996 and resolved in May 1997 in Aini v. Sun Taiyang Co., 964 F. Supp. 762 (S.D.N.Y. 1997) (" Aini I "). An interlocutory judgment, which among other things awarded to defendant Laboratoire REC ("REC")and against plaintiff Jacob Aini the sum of $ 553,995.26 in respect of goods sold and delivered and interest, was entered in July 1997. The Court then tried the surviving trademark infringement damage claim of plaintiff Topiclear Beauty Products, Inc. ("TBPI"), which was determined in Aini v. Sun Taiyang Co., 964 F. Supp. 762, No. 96 Civ. 7763 (LAK), 1997 WL 576027 (S.D.N.Y. Sept. 15, 1997) (" Aini II "). Final judgment now has been entered disposing of this and a related action, No. 96 Civ. 9318.

 On September 3, 1997, Jacob Aini moved, inter alia, to vacate the portion of the interlocutory judgment which determined that he was indebted to REC for $ 553,995.26. All other parts of the motion have been withdrawn or rendered moot. Accordingly, only this aspect of Aini's motion remains.

 Aini's Contentions

 Aini's contentions of course are best understood against the background of the Court's opinions in Aini I and Aini II, familiarity with which is assumed. They are as follows:

 1. The debt on which REC sued and sought relief actually was owed, if it was owed at all, by a corporation known as RNM, which was not a party to the action. REC's claim for goods sold and delivered therefore was beyond the scope of the litigation.

 2. The Court improperly pierced the corporate veil to hold Jacob Aini liable for RNM's debt.

 3. The Court erred in computing damages in that (a) it improperly relied upon documents not in evidence, (b) the invoices upon which the damage determination was made improperly reflected overcharges by REC for the goods in question, and (c) the debt claimed actually had been paid.

 4. Although REC was named by plaintiffs as a defendant in this case and brought the counterclaim that resulted in the judgment against Aini, there is no evidence that it was authorized to sue or that its counsel in this action was authorized to act on its behalf.

 The most meritorious of these assertions is frivolous.

 Discussion

 Aini's Personal Liability for the Debt

 Aini's first two points boil down to the contention that the contracts for the sale of goods that gave rise to the debt upon which REC sued were not his personal obligations. He bases the argument on the assumption that the debt was owed by a corporation called RNM and that the ...


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