allegedly received the sixteen Tapes from MTVN, paid $ 200,000.00 of the amount due under the Agreement, but refuses to return the Tapes and refuses to pay the additional $ 268,000.00 required under the Agreement (Complaint PP 14-16). All of the remaining claims are based on the alleged failure to return the Tapes.
In support of Lane's motion, he has submitted documents titled "Memorandum of Points and Authorities" ("Lane Mem.") and an unsworn "Statement of Facts" with four attached exhibits ("Lane Statement").
He also submitted a sworn "Reply" to MTVN's opposition papers ("Lane Reply").
Lane alleges that he is not a party to the Agreement, entered into by UNTV and MTVN, and submits copies of what he describes as the Agreement and its Amendments 1 and 2 (Lane Statement Ex. 2-4). MTVN does not appear to dispute that his documents are the Agreement. On its face, it unambiguously shows it is between MTVN and UNTV and that Lane signed it as the President for the corporation UNTV. He states that UNTV is a Ukrainian corporation formed under Ukrainian law (Lane Statement P 1) and submits what he describes as the UNTV by-laws (Lane Statements Ex. 1; Lane Reply pp. 1-3). The by-laws appear to be in Ukrainian or Russian, and he submits an English translation of them. He claims that MTVN knew it was dealing with the corporation as shown by submitted correspondence between MTVN, on the one hand, and UNTV, on the other (Lane Statement Ex. 4-6). He states he was "only a 30% owner" of UNTV (Lane Statement P 2) and that MTVN never requested any personal guaranty (Lane Statement P 8). The documents submitted include MTVN invoices addressed to Ukrainian Network Television, not Lane.
In opposition to the motion MTVN submits a document titled "Statement Pursuant to Local Civil Rule 3(g)" ("MTVN Statement")
and a Memorandum of Law ("MTVN Mem."). The Statement is improper because it does not contain the material facts as to which MTVN contends there exists a genuine issue to be tried, Rule 56.1(b), nor does it purport to controvert the facts set forth in the Lane Statement. See Rule 56.1(c). The Statement includes no supporting evidence for its contentions. Indeed, MTVN submits no evidence at all, contending that there are "numerous, material issues of fact." MTVN also challenges the UNTV "by-laws" submitted by Lane as unauthenticated documents and the translation as uncertified.
Under Rule 56(c) of the Federal Rules of Civil Procedure a motion for summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing out that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party then must meet a burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322.
The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985). See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). The court is to inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and to grant summary judgment where the non-movant's evidence is irrelevant or merely colorable, conclusory, speculative or not significantly probative, id. at 249-50; Knight v. U.S. Fire Ins. Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 94 L. Ed. 2d 151, 107 S. Ct. 1295 (1987). To determine whether the nonmoving party has met his or her burden, the court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, i.d., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of the summary judgment motion. See, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.
Once the nonmoving party has successfully met the burden of establishing the existence of a genuine dispute as to an issue of material fact, summary judgment must be denied unless the moving party comes forward with additional evidence sufficient to satisfy his or ultimate burden under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. at 330 & n.2 (Brennan, J. dissenting). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)).
It is initially noted that Lane's failure to comply with the requirements of Local Civil Rule 56.1 constitutes grounds for denial of his motion. See, e.g., Rossi v. New York City Police Dep't, 1998 U.S. Dist. LEXIS 1717, No. 94 Civ. 5113, 1998 WL 65999, at *4 (S.D.N.Y. Feb. 17, 1998); Reiss v. County of Rockland, 1985 U.S. Dist. LEXIS 21633, No. 84 Civ. 1906, 1985 WL 426, at *1 (S.D.N.Y. March 19, 1985). His papers as submitted, in any event, fail to establish the absence of a factual dispute as to whether he can be held liable under the Agreement.
To carry his burden on this motion, he must present material in a form admissible in evidence. Fed. R. Civ. P. 56(e). See Saari v. Merck & Co., 961 F. Supp. 387, 397 (N.D.N.Y. 1997); Tetra Technologies, Inc. v. Harter, 823 F. Supp. 1116, 1120 (S.D.N.Y. 1993); Maryland Cas. Co. v. W.R. Grace & Co., 794 F. Supp. 1206, 1233 (S.D.N.Y. 1991). If UNTV were not a valid corporation as alleged by MTVN, Lane as "President" and the signatory to the Agreement could be liable. See Bay Ridge Lumber Co. v. Groenendaal, 175 A.D.2d 94, 96, 571 N.Y.S.2d 798, 800 (2d Dep't 1991); Brandes Meat Corp. v. Cromer, 146 A.D.2d 666, 667, 537 N.Y.S.2d 177, 178 (2d Dep't 1989); Imero Fiorentino Assocs., Inc. v. Green, 85 A.D.2d 419, 420-21, 447 N.Y.S.2d 942, 943 (1st Dep't 1982); Puro Filter Corp. v. Trembley, 266 A.D. 750, 41 N.Y.S.2d 472, 473, motion for appeal denied, 266 A.D. 848, 43 N.Y.S.2d 635 (2d Dep't 1943).
Although he submits what he states are UNTV's by-laws, he has not submitted any authentication for them, which are purported to be foreign public records. Pursuant to Fed. R. Evid. 902(3), extrinsic evidence of authenticity is not needed for the following types of foreign public records:
A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation.