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ROSBACH v. INDUSTRY TRADING CO.

February 4, 2000

HOWARD ROSBACH AND RAYMOND HARVEY, PLAINTIFFS,
V.
INDUSTRY TRADING CO., INC. AND SHRAGA GANCZ, DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

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.

The Parties

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.

Prior Proceedings

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, 1999.

Facts

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 ...


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