United States District Court, Southern District of New York
February 1, 2000
LAZAR'S AUTO SALES, INC., ET AL., PLAINTIFFS,
CHRYSLER FINANCIAL CORPORATION ET AL., DEFENDANTS CHRYSLER FINANCIAL COMPANY L.L.C., PLAINTIFF, V. CHARLES CARTALEMI AND JOAN CARTALEMI, DEFENDANTS
The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER DETERMINING MOTIONS
BY VARIOUS PARTIES FOR SUMMARY JUDGMENT
On January 5, 1999, Plaintiffs — corporations under the control
of Charles Cartalemi that hold franchises to sell automobiles from
various manufacturers — commenced the first above-captioned action
in the New York State Supreme Court. There, they sought, inter alia, to
enjoin Defendants from terminating dealer financing that Defendant
Chrysler Financial Corporation had been providing to all three
dealerships. Plaintiffs moved for a preliminary injunction; Defendants
countered by removing the action to this Court. On March 2, 1999, this
Court released an opinion and order in 99 Civ. 213, denying Plaintiffs'
motion for a preliminary injunction against the termination of its dealer
financing by CFC. See Lazar's Auto Sales, Inc. v. Chrysler Financial
Corp., et al., 1999 WL 123501 (S.D.N.Y. March 2, 1999). Familiarity with
that opinion is presumed.
Since that time, CFC has commenced its own action against Plaintiffs
seeking to recover amounts due it from the dealerships and from Cartalemi
and his wife Joan, pursuant to guarantees that they signed. The two
actions have been consolidated. Since last March, the parties have
conducted extensive discovery. Now, on a full record, CFC and Chrysler
have moved this Court for summary judgment dismissing the actions
commenced by Plaintiff Lazar's.
For the reasons set forth below, the motions are granted and the
original action (99 Civ. 213) is dismissed.
I. STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate when "there is no genuine issue as to
any material fact and . . . the moving party is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c). It is the non-moving party's burden
to "demonstrate to the court the existence of a genuine issue of material
fact." Lendino v. Trans Union Credit Information Co., 970 F.2d 1110, 1112
(2d Cir. 1992). In opposing summary judgment, a party may not rest upon
allegations or denials, or simply claim without support that evidence
adduced by the movant in support of the motion is not credible. See,
e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986); Mycak v. Honeywell, Inc., 953 F.2d 798, 801-802 (2d
II. REASONS FOR DECISION
A. The First Cause of Action (Federal Dealer's Day in Court Act)
The first claim for relief in 99 Civ. 213 is pleaded by Plaintiff
Lazar's Auto against both Defendants under the federal Automobile
Dealer's Day in Court Act ("ADDCA"), 15 U.S.C. § 1222 et seq. Lazar's
claims that Chrysler and CFC are "automobile manufacturers," as defined
in 15 U.S.C. § 1221 (a), and that they failed to act in "good faith,"
as defined in 15 U.S.C. § 1222 (e), in their performance under the
June 1985 Dealer Sales and Service Agreement between Lazar's Auto and
Chrysler. Specifically, Lazar's Auto contends that CFC, at the behest of
and as an agent for Chrysler, retaliated against Lazar's Auto because it
refused to accept a franchise "swap" with a competing dealership in the
Peekskill/Yorktown area, Salerno Chrysler Plymouth Dodge, Inc. The acts
of retaliation attributed to CFC by Lazar's Auto include, inter alia,
performing excessive bank cutoffs and floor plan audits; wrongfully
rejecting retail installment contracts and lease contracts, resulting in
bounced drafts; suspending and then terminating its wholesale credit
line; and otherwise interfering with Plaintiffs' relationships with BMW
and General Motors.
(a) As against CFC. This claim must be dismissed as a matter of law as
against CFC because CFC is not an automobile manufacturer. To put it as
simply as possible, CFC does not make cars. It provides financing for
persons (in this case, automobile dealers) who want to purchase cars at
wholesale for resale at retail. Nor is CFC a party to the 1985 Sales and
The only way that CFC can be held liable under the ADDCA is if the
evidence establishes that it is an agent of Chrysler or is otherwise
under Chrysler's control. See Keys Jeep Eagle, Inc. v. Chrysler Corp.,
897 F. Supp. 1437 (S.D.Fla. 1995), aff'd without opinion, 109 F.3d 773
(11th Cir. 1997). In the March 2 opinion, this Court noted the near
identity between the allegations in Keys Jeep Eagle and those in this
matter, as well as the fact that New York and Florida law on the question
of agency is identical. (Memorandum. Decision and Order ¶¶ 7-8.) I
observed that Plaintiffs would have to establish both that Chrysler was
responsible for CFC's apparent authority to conduct the transactions in
question and that the Lazar's dealership reasonably relied on the
representation of CFC. (Memorandum Decision and Order ¶ 8.)
The record contains no evidence to support a finding that CFC acted as
Chrysler's agent — or even at its behest — in any respect
concerning Lazar's Auto. Although many months have passed since the
preliminary injunction motion was made and much discovery has transpired,
Lazar's Auto has not turned up any of evidence to support its speculation
that Chrysler used CFC to try to put Lazar's Auto out of business so that
it could transfer the lucrative Jeep-Eagle franchise to its favored
dealer, Salerno, as part of the implementation of Chrysler's "Project
2000." Plaintiffs have not directed this Court's attention to a single
item of evidence to support their belief that someone at Chrysler
directed, requested, or even suggested that CFC help Chrysler implement
Project 2000, heighten its financial scrutiny of Plaintiff, or suspend or
terminate Lazar's credit facilities. For that reason alone, the claim of
agency could never be submitted to a jury, and the first cause of action
must be dismissed as against CFC on the ground that it is not an
Even if there were evidence that CFC was Chrysler's agent for ADDCA
purposes, no competent evidence creates a disputed issue of material fact
concerning CFC's alleged failure to act in "good faith" within the
meaning of the ADDCA in its dealings with Lazar's Auto. As discussed in
the March 2 opinion, "good faith" has a narrow and restricted two-pronged
meaning under the ADDCA. See Empire Volkswagen, Inc. v. World-Wide
Volkswagen Corp., 814 F.2d 90, 95 (2d Cir. 1987). First, the Plaintiff
must demonstrate that an "automobile manufacturer" coerced, intimidated
or threatened him. Second, the plaintiff must prove that any coercion or
intimidation was designed to achieve some improper or wrongful
objective. Indeed, summary judgment will be granted unless Plaintiff
introduces some evidence that CFC made a wrongful demand and then
enforced it by threats or coercion or intimidation. See Quarles v.
General Motors, 597 F. Supp. 1037 (W.D.N.Y. 1984), aff'd, 758 F.2d 839
(2d Cir. 1985).
No such evidence has been produced. Plaintiff contends that the
business practices that CFC clamped down on were perfectly acceptable for
12 or 13 years prior to the period when Chrysler allegedly wanted to put
Lazar's out of business pursuant to "Project 2000." From that, Lazar's
claims a jury could infer that CFC's sudden insistence on adherence to
contractual standards constituted bad faith. Assuming arguendo that CFC
tolerated shoddy business practices in the past, that would not preclude
it from demanding strict adherence to the terms of the contract in the
future. The 1985 Master Security Agreement between Lazar's Auto and CFC's
predecessor in interest so states, at Section 8.6; so does the 1994
Security Agreement and Master Credit Agreement between Lazar's Auto and
CFC's predecessor in interest. Thus, under the terms of the contracts
themselves, Plaintiff's premise is wrong.
Moreover, as the Court discussed in the March 2 opinion, in each and
every instance that Lazar's cites as an example of CFC's bad faith, CFC
had a legitimate business reason to take action against the dealer. When
Cartalemi breached Section 7.0 of the Security Agreement by refusing to
give CFC access to the dealer's books and records, CFC had a contractual
right to refuse to extend credit to Lazar's. When Lazar's bounced
checks, CFC had a contractual right to step up its bank audits of the
dealer's finances. When CFC received contracts that failed to comply with
the requirements of truth in lending laws, it had the right to "bounce"
the contracts until the errors were corrected — and there is no
evidence that either the contracts were correct as initially submitted,
or that CFC failed to honor them once the errors were fixed. When a "book
audit" showed that CFC was not being paid on a timely basis for the vast
majority of cars sold by all three of Plaintiff dealerships, CFC had the
right — the conceded right (see Cartalemi Dept. at 128) — to
perform more frequent inventory audits. Lazar's Auto and Mr. Cartalemi
have not produced a shred of evidence, despite months of discovery, that
even suggests let alone proves, that this Court's conclusions of ten
months ago were erroneous.
Plaintiff's contention that CFC permitted Salerno to sell Jeeps in
violation of Lazar's exclusivity agreement is frivolous. That there was a
Jeep on Salerno's property one day — which I will assume for
purposes of this motion — neither establishes that it was for sale
nor that CFC had anything to do with the fact that it was there. No other
evidence concerning the alleged violation of Plaintiff's franchise
exclusivity has been submitted to this Court.
Finally, Plaintiffs have not submitted any evidence to controvert CFC's
contention, and this Court's prior finding, that CFC had every right to
suspend Lazar's wholesale line of credit on two occasions.
In mid-July 1998, in light of Cartalemi's continuing refusal to permit
CFC to have access to its books and records, CFC suspended Lazar's line
of credit until an audit could be satisfactorily completed. Unless
rebutted, the sworn testimony of CFC's Peter Buteau establishes that CFC
suspended Lazar's credit on July 17, one day after being advised that
Cartalemi would not permit his books to be audited on July 20. While Mr.
Cartalemi would have the Court believe that he has raised an issue of
fact about whether his refusal to permit access or CFC's credit
suspension came first, he has not done so. At no point has Mr.
Cartalemi, or any competent witness, stated under oath that CFC suspended
the credit before being told that no audit could take place. The best
Mr. Cartalemi can claim is that he does not recall when he told CFC that
the July 20 audit could not go forward. Cartalemi's failure of
recollection does not suffice to raise an issue of fact in the face of
Buteau's clear recollection that Lazar's balked on July 16, one day
before credit was suspended.
On September 23, 1998, CFC again suspended Lazar's credit, this time
for good. The reason was Cartalemi's refusal to meet with a CFC
representative or to submit a viable, professional business plan for
getting the dealerships back on a sound financial footing. This, coupled
with a finding that the three dealerships were substantially
undercapitalized, more than justified CFC's decision to terminate its
arrangement with Plaintiffs — an action it was contractually
entitled to take.
(b) As against Chrysler. The ADDCA claim must be dismissed against
Chrysler, even though DaimlerChrysler is without question an "automobile
dealer" within the meaning of the ADDCA. It is the actions of CFC that
are alleged to have wronged the Lazar's dealerships; Chrysler's alleged
liability is predicated on an agency relationship and is wholly
derivative. Cartalemi testified that he was upset with Chrysler
Corporation, but he also testified that no Chrysler employee or
representative ever threatened to terminate his franchise if he refused
to swap products with Salerno. (Cartalemi EBT at 405-406). Plaintiff's
theory was that Chrysler "came after me with bogus claims through
Chrysler Financial." (Cartalemi EBT at 285). There being no evidence that
CFC's claims were bogus, or that its actions were unjustified, or that
CFC took the actions it did at the behest of Chrysler, there is no ADDCA
claim against Chrysler.
It is particularly troubling to the Court that the Plaintiffs have
persisted in these contentions despite my clear indication almost a year
ago that Mr. Cartalemi's speculation and conjecture were insufficient to
make out his claims. If this opinion is little more than a rehash of its
March 2 predecessor, that is because today's post-discovery record
contains no more hard evidence of wrongdoing by CFC or Chrysler than did
yesterday's pre-discovery record.
The First Cause of Action is dismissed.
B. The Second, Third, Fourth and Fifth Causes of Action (New York
Franchise Motor Vehicle Dealer Act, New York Vehicle and Traffic
Law, Section 460 et seq.)
Plaintiffs' second, third, fourth and fifth claims are brought against
Chrysler pursuant to New York's statutory counterpart to the ADDCA, the
New York Dealer Act, VTL § 460 et seq.
Count 2 is simply a restatement of the allegations of Count 1, but
relies on state rather than federal law. The two statutory schemes are
virtually identical. Therefore, Count 2 must be dismissed for the same
reasons as Count 1 — because Plaintiff has introduced no evidence
of coercion, either directly by Chrysler or through the "agency" of CFC.
Count 3 alleges that Chrysler is liable to Lazar's Auto Sales for
violation of Section 463(2)(d)(1) of the New York Dealer Act, which makes
it unlawful for any automobile manufacturer "to terminate, cancel or
refuse to renew the franchise of any franchised motor vehicle dealer
except for due cause." Chrysler has never terminated, cancelled or
refused to renew Lazar's franchise; its dealership is still open for
today, selling Chrysler automobiles. To paraphrase a famous old
commercial, where's the breach?
Count 4 alleges that Chrysler violated Section 463(2)(u) of the New
York Dealer Act by using CFC, a subsidiary or affiliated corporation, to
accomplish what would otherwise be unlawful conduct on its part.
Obviously, summary judgment must be granted dismissing this claim too,
since Plaintiff points to nothing (except his own feeling that the
intersection of his resistance to Chrysler's "Project 2000" and CFC's
enhanced scrutiny of his finances "just couldn't be a coincidence") to
support his contention that CFC acted at the behest or direction of its
Finally, in Count 5, Plaintiff Lazar's asserts that Chrysler violated
Section 468(1) of the New York Dealer Act, which makes it unlawful for
any automobile manufacturer "directly or indirectly to impose
unreasonable restrictions on the franchised motor vehicle dealer relative
to transfer." It is undisputed that Chrysler never insisted that Lazar's
give up its Jeep Eagle dealership, and nothing in the Dealer Act
prohibited Chrysler from asking it to do so. Normally, this provision is
invoked when dealers request approval of a transfer, and there is no
evidence that Lazar's ever sought approval from Chrysler to change its
C. Plaintiffs' Common Law Claims
(a) Claim for Breach of Contract against Chrysler (Count 6)
Plaintiff contends that Chrysler breached an unspecified provision of
the Dealer Agreement between it and Lazar's. Plaintiff has not identified
which provision of the contract was breached, except to say that the
entire course of dealing from the inception of the Chrysler "2000 Plan"
through the termination of its financing by CFC constitutes a violation
of the covenant of good faith and fair dealing that inheres in every
contract. (Pl.Mem in Opposition to Defendant's Motion For Summary
Judgment, ¶¶ 23-25.)
There are two problems with this argument. The first is that, under
Michigan law (which governs the interpretation of the contract, see
Dealer Agreement, ¶ 42), there is no implied covenant of good faith
and fair dealing separate and apart from some specific provision of the
contract. See Van Arnem Co. v. Manufacturers Hanover Leasing Corp.,
776 F. Supp. 1220, 1223 (E.D.Mich. 1991). Since Plaintiff has failed to
identify which provision of the Dealer Agreement Chrysler breached, it
has failed to make out any claim.
The second problem, of course, is that there was never any breach of
the Dealer Agreement by Chrysler. The only action taken by Chrysler vis a
vis Plaintiff was its request that Plaintiff swap franchises with
Salerno's. Making that request did not breach the Dealer Agreement, and
when Lazar's turned Chrysler down, Defendant did nothing more about the
matter. Plaintiff's failure to adduce any evidence to support its grand
conspiracy theory makes all of CFC's actions irrelevant — even if
they were wrongful, which of course they were not.
The Sixth Cause of Action is Dismissed.
(b) Breach of Contract Against CFC (Seventh Cause of Action)
The Seventh Cause of Action alleges that CFC breached the three
dealerships' Security and Master Credit Agreements by performing the acts
discussed under the analysis of the First Cause of Action, and most
particularly by terminating the dealerships' financing. Unfortunately, the
Plaintiffs do not specify what provisions were breached, leaving only a
claim predicated on a breach of the alleged obligation of good faith and
fair dealing that supposedly inheres in every contract. (Charles
Cartalemi, Dep. at 424-425). This Court has already concluded that
lending decisions by CFC are purely discretionary and may be terminated
at any time. Under New York law, a financing institution does not breach
any duty of good faith and fair dealing when it exercises its contractual
right to terminated financing. See Chrysler Credit Corp. v. Dioguardi
Jeep Eagle, Inc., 192 A.D.2d 1066, 1067, 596 N.Y.S.2d 230 (4th Dept.
1993). In fact, a lender may exercise any contractual right without
breaching some duty of "good faith." Gillman v. Chase Manhattan Bank,
73 N.Y.2d 1, 15, 537 N.Y.S.2d 787, 534 N.E.2d 824 (1988). Everything CFC
did to the Cartalemi dealerships was authorized by the various contracts
it had with those dealerships. Therefore, there cannot possibly have been
any breach of the agreements.
The Seventh Cause of Action is Dismissed.
(c) Tortious Interference With Contract Against CFC and Chrysler
(Eighth Cause of Action)
Plaintiffs' Seventh cause of action alleges that both Chrysler and CFC
tortiously interfered with its contractual relationships with General
Motors and BMW, whose franchised dealerships Mr. Cartalemi also held, and
for which CFC also provided floor financing. The gravamen of Plaintiffs'
claim is that CFC's termination of the GM and BMW dealerships financing
somehow constituted a wrongful interference with the Cartalemis' ability
to do business with GM and BMW.
The elements of tortious interference with contract are well-settled
under New York law. The elements include: the existence of a valid
contract between the plaintiff and some third party; knowledge of that
contract by the defendant; defendant's intentional inducement of a breach
by the third party to the contract; and damages to the plaintiff as a
result of the third party's breach. See Int'l Minerals and Resources, SA
v. Pappas, 96 F.3d 586, 595 (2d Cir. 1996), citing Kronos, Inc. v. AVX
Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 612 N.E.2d 289 (1993). The
third's party's breach must have been caused by the defendant, and the
plaintiff must prove that the third party would not have breached except
for the wrongful activities of the defendant. See Sharma v. Skaarup Ship
Mgmt. Corp., 916 F.2d 820, 828 (2d Cir. 1990). Moreover, the action that
induces the alleged breach cannot have been one that the accused
tortfeasor was privileged to take. See Felsen v. Sol Cafe Mfg. Corp.,
24 N.Y.2d 682, 301 N.Y.S.2d 610, 249 N.E.2d 459 (1969).
In this case, Plaintiffs do not assert, let alone prove, that either GM
or BMW breached any contract with them. Instead, they assert that they,
the Plaintiffs, were forced to breach their agreements with BMW and GM
when CFC cut off their financing. (Pl.Mem of Law at 22). That is not the
fact pattern contemplated by the tortious interference doctrine known as
inducing breach of contract, since a plaintiff's own breach of contract
cannot cause it any damage.*fn1
Two other factors warrant summary judgment dismissing this claim. As
against Chrysler, the claim must be dismissed for the reason that most of
the other claims must be dismissed: there is no evidence linking Chrysler
to CFC's allegedly wrongful decision to cut off Cartalemi's financing,
either directly or through any theory of agency. And as against CFC,
there is no evidence in this record from which a reasonable juror could
conclude that CFC was not contractually privileged to cut off financing
to the Plaintiff's
dealerships. Since CFC was entitled to cut the Plaintiffs off, it did not
tortiously (i.e., wrongfully) interfere with the dealerships' relations
with their suppliers. See, e.g., Campbell v. Gates, 236 N.Y. 457, 460,
141 N.E. 914 (Ct.App. 1923) (noting that a defendant will be liable for
tortious interference with contract rights only in those cases where the
interference is improper and without reasonable justification).
The Eighth Cause of Action is dismissed.
(d) Catch-All Tort Against Chrysler (Ninth Cause of Action)
The Plaintiffs' eighth cause of action states only that Chrysler and
CFC are liable to the Plaintiffs for their knowing, intentional, willful
and malicious actions, which were taken in disregard of the Plaintiffs'
contract, statutory and common law rights. The Plaintiffs' complaint does
not state a claim for any cognizable tort, but appears to be a way of
asserting that Plaintiffs are entitled to punitive damages. Of course, as
they are not entitled to compensatory damages under any theory,
Plaintiffs can hardly be entitled to punitive damages.
If Plaintiffs are attempting to make out a claim for a prima facie
tort, they have failed to do so. This highly disfavored cause of action
derives from the common law action on the case that permitted recovery
for intentional harm inflicted by acts that might otherwise be lawful.
The elements of such a claim are (1) the intentional infliction of harm
on another; (2) resulting in damage; (3) without excuse or
justification; (4) by an act or series of acts that would otherwise be
lawful. See, e.g., Knapp Engraving Co. v. Keystone Photo Engraving
Corp., 1 A.D.2d 170, 172, 148 N.Y.S.2d 635, 637 (1st Dept. 1956). See
also Gurwitz v. Leichter, 19 Misc.2d 749, 192 N.Y.S.2d 321, 322 (2nd
Dept. 1959). It should not be necessary to go through the recital of
relevant facts and findings yet again. Chrysler committed no act that
caused Plaintiffs any harm, and CFC did not do anything wrongful at
Chrysler's direction. Everything CFC did was fully justified under the
terms of its contracts with the Cartalemi dealerships. Furthermore, there
is absolutely no evidence that CFC acted with an intent to inflict harm,
as opposed to protecting its own interests. The fact that it gave the
dealerships ample time to find alternative financing negates any such
inference (were it otherwise possible to make one-which it is not).
The Ninth Cause of Action is Dismissed.
(e) Injunction Against Termination of Credit Facilities By Credit
Facilities By CFC (Tenth Cause of Action)
This claim is moot in light of the fact that the Plaintiffs have made
alternative financing arrangements. However, for the same reasons stated
by this Court when it denied the motion for a preliminary injunction,
there is no basis in law or in fact to enter such an injunction.
The motions for summary judgment made by both Defendants are granted
and the complaint against them is dismissed in its entirety.
This leaves the claims asserted by CFC in 99 Civ. 2484. The parties are
directed to appear for a pre-trial conference on March 3, 2000 at 3:30
This constitutes the decision and order of the Court.