The opinion of the court was delivered by: Sweet, District Judge.
Defendants Industry Trading Co. ("ITC") and Shraga Gancz
("Gancz") (together, "Defendants") have moved to dismiss the
complaint of plaintiffs Howard Rosbach ("Rosbach") and Raymond
Harvey ("Harvey") (together, "Plaintiffs") as barred by the
Statute of Frauds. For the reasons set forth below, the motion
will be granted in part and denied in part.
Rosbach is a citizen of Nevada.
Harvey is a citizen of Massachusetts.
ITC is a New York corporation with its principal place of
business in New York.
Gancz is a citizen of New York and president of ITC.
In 1992 or 1993,*fn1 ITC filed an action against Rosbach in
New York State Court, Suffolk County, to recover $15,000 due for
goods sold and delivered by ITC to Rosbach (the "State Action").
ITC was awarded a default judgment in the 1992 Action for the
$15,000, plus interest (the "Default Judgment").
The complaint in this action (the "Complaint") was filed on
August 31, 1999. The instant motion to dismiss was filed on
October 27, 1999. Oral argument was heard on November 10.
Additional briefing materials were received through November 29,
On a motion to dismiss under Rule 12(b)(6), the facts alleged
in the complaint are presumed to be true, and all factual
inferences are drawn in the plaintiff's favor. See Mills v.
Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993).
Accordingly, the facts presented here are drawn from the
allegations of Plaintiffs' Complaint and do not constitute
findings of fact by the Court.
ITC, a diamond wholesaler, supplied diamonds for a period of
time to Rosbach, a diamond broker, who in turn sold the diamonds
to customers. Rosbach paid ITC the retail price minus an
agreed-upon sales commission.
Early in 1993, a purchaser failed to pay Rosbach for a $15,000
diamond provided by ITC. Rosbach, in turn, failed to pay
ITC. ITC ...