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HIDDEN BROOK AIR, INC. v. THABET AVIATION INTERNATIONAL
October 31, 2002
HIDDEN BROOK AIR, INC., PLAINTIFF,
THABET AVIATION INTERNATIONAL INC., CLERMONT LEVASSEUR, 161768 CANADA INC., AND RAYTHEON AIRCRAFT COMPANY DEFENDANTS.
The opinion of the court was delivered by: McMAHON, Judge.
MEMORANDUM DECISION AND ORDER DENYING ALL
PARTIES' MOTIONS FOR SUMMARY JUDGMENT
This case begins with the aborted sale of a "Beach King Air 350"
twin-prop airplane, referred to by its serial number FL-165. Plaintiff
Hidden Brook Air, Inc. ("Hidden Brook") alleges that defendants Clermont
Levasseur and his closely-held corporation, 161768 Canada, Inc.
(collectively "Levasseur Defendants") breached a contract to buy FL-165,
and that defendant Raytheon Aircraft Corporation ("Raytheon") tortiously
induced that breach of contract. The Levasseur Defendants, in turn,
counterclaim that it was Hidden Brook, not they, that breached the
contract. Hidden Brook moves for summary judgment on all claims, and
Raytheon moves for summary judgment on Hidden Brook's tortious
interference with contractual relations claim.
For the reasons stated below, I must deny all parties' motions. Some
issues are amenable to summary judgment, however, which should shorten the
trial. I also take this opportunity to make several rulings of law that
need not await trial.
The following facts are undisputed unless otherwise noted.
Hidden Brook is a corporation that owns and maintains an aircraft for
Marshall Field, IV ("Field"). Field is the corporation's President and sole
shareholder. Hidden Brook owned and maintained a twin-prop airplane, known
by its serial number FL-165, which it had purchased in 1997 from the
airplane's manufacturer, Raytheon. In late 1998, Hidden Brook decided to
sell FL-165 and acquire a jet to replace it. The corporation hired Robert
Abrams ("Abrams"), an individual with experience in the sale and marketing
of aircrafts, to help it complete the sale. Abrams advertised the aircraft
in several publications and on the Internet.
Defendants Clermont Levasseur and 161768 Canada, Inc. ("Levasseur
Defendants") own and maintain various aircrafts. In early 1999, they wanted
to purchase a Beech King Air 350. Toward that end, they opened discussions
with that model aircraft's manufacturer, Raytheon. More specifically, they
began negotiations with William J. Spencer ("Spencer"), a Raytheon sales
director, for the purchase of a "New Ultra Quiet Super King Air 350" known
by the identification number FL-259. On or around June 7, 1999, Raytheon
offered to sell FL-259 for $5 million. The Levasseur Defendants did not
accept the offer.
Raymond Thabet ("Thabet") is the President and sole shareholder of the
Canadian corporation Thabet Aviation International,
Inc. His corporation
locates planes for buyers, prepares the necessary documentation, and if
necessary arranges for the importation of the purchased plane into Canada
from the United States. Thabet performed such services for the Levasseur
Defendants several times prior to the events at the center of this case. In
April of 1999, for example, Thabet located an aircraft in Minnesota,
arranged for the pre-purchase inspection, opened an escrow account,
negotiated with the seller, registered the aircraft in Canada, and
purchased the aircraft in his own name on behalf of 161768 Canada, Inc.
Thabet was not involved in the Levasseur Defendants' negotiations with
Spencer concerning the purchase of FL-259.
B. The Offer to Purchase FL-165
In late May 1999, Thabet learned through one of Abrams's advertisements
that FL-165 was for sale. He contacted the Levassuer Defendants and told
them that he had found a plane they might be interested in purchasing. The
Levassuer Defendants told Thabet to gather more information, so he
contacted Abrams. Thabet was to receive a $50,000 commission from the
Levasseur Defendants if he introduced them to a plane that they ultimately
After contacting Abrams, Thabet advised "M. Levasseur," by fax dated June
1, that Hidden Brook's asking price was $4.2 million. What was attached to
the fax is in dispute. Hidden Brook (based solely on Thabet's testimony)
claims that Thabet sent two draft offers to the Levasseur Defendants for
them to review, one at a price of $3.95 million and one at $4 million. The
Levasseur Defendants contend that they received only the draft offer for
Except for the price, the two draft offers were not materially
different. In particular, both draft offers stated: "WE HEREBY OFFER TO
PURCHASE THE AIRCRAFT DESCRIBED BELOW ON BEHALF OF OUR CUSTOMER CLERMONT
LEVASSEUR," and included several terms and conditions. They provided, for
example, that (1) $200,000 was to be put in escrow upon acceptance of the
offer, (2) Hidden Brook was to correct any major deficiency found during an
inspection of FL-165, (3) title was to be free and clear of all liens and
encumbrances at closing, (4) all original aircraft records were to be
handed over with the plane, and (5) the plane was to be delivered with all
systems and avionics in good working condition. In addition, the offers
stated that "IF THE AIRCRAFT SUCCESSFULLY PASSES THE PRE-PURCHASE
INSPECTION, WILL PURCHASE THE AIRCRAFT."
Hidden Brook claims, again based on Thabet's deposition testimony, that
the Levasseur Defendants authorized Thabet to send Hidden Brook the
higher offer, for $4 million. Levasseur testified that he authorized
Thabet to offer $3.95 million, which was the only offer he knew about.
There is no dispute that Levasseur authorized some offer to be sent, or
that Thabet sent Hidden Brook the $4 million offer, signed by him and
dated June 1. Field ultimately counter-signed the offer. He testified the
signature on the document was his, although he did not recall signing
C. The Trip to Poughkeepsie and its Aftermath
The next day, June 7, Thabet sent a fax to "M.C. Levasseur." The fax's
cover sheet explained that Thabet had opened a trust account with an escrow
agent and that he was preparing a formal purchase contract "similar to what
I signed June 1" (i.e. the offer to purchase FL-165) but with four
additional terms: (1) delivery of the aircraft to Quebec, (2) the
"[t]ransfer of guarantees," (3) inclusion of a "gravel kit" with the
plane, and (4) the condition that final payment be made six days "after
receiving `export license' document." [Hidden Brook Decl. Ex. 16]
Thabet's fax also contained a copy of a document he had sent to Aero
Space Reports, the escrow agent, as well as a copy of the fully executed
offer for $4 million, signed by both Thabet and Field. The document sent to
the escrow agent also contained the $4 million figure, stating "[t]he price
for the aircraft is $4,000,000.00 US." [Hidden Brook Decl. Ex. 16] In
addition, it stated, "We are making a deposit of $200,000 to hold the
aircraft for the pre-buy inspection. that will be done at Stevens
Beechcraft in South Carolina. Will adivise [sic] you when the deposit
become non refundable." [Hidden Brook Decl. Ex. 16]
Levasseur claims he first saw the $4 million figure when he received this
June 7 fax. There is no evidence, however, that he protested, or attempted
to retract the offer on the ground that it was not authorized. Indeed,
around the time this fax was sent, Thabet, with the Levasseur Defendants'
knowledge, took additional steps to culminate the purchase of Hidden
Brook's airplane. To induce Hidden Brook to take the plane off the market,
Thabet obtained $200,000 from 161768 Canada and wired it to the escrow
agent. Thabet also sent a fax to Abrams concerning the four additional
terms that he had mentioned in his June 7 fax to the Levasseur Defendants.
And on or about June 7, Robert Philpott, a consultant and occasional pilot
for Hidden Brook, flew the plane to South Carolina for its formal
inspection by Stevens Aviation. The inspection took place on or around June
D. The Purchase Agreement and the Hidden Commission
On or about June 11, Thabet faxed Abrams a purchase agreement for FL-165
signed by Thabet (hereinafter "the purchase agreement"). The fax cover
sheet stated: "This is the sign [sic] copy of the purchase agreement for
s/n FL-165. When able send me the signed copy back." [Hidden Brook Decl.
Ex. 19] The purchase agreement provided that the purchaser (Thabet Aviation
International, Inc.) would pay $4 million for FL-165 — an amount that
Levasseur had known about since June 7. At some point, Philpott signed the
purchase agreement on behalf of Hidden Brook. He testified that he did not
remember precisely when he did so, but it was at some time when he was at
Stevens Aviation awaiting FL-165's export certification. [Hidden Brook
Decl. Ex. 2, Philpott Dep. 37]
At Thabet's request, the purchase agreement contained a term that was
not in the offer to purchase. This new term obligated Hidden Brook to pay
$50,000 to "the broker designated by the purchaser" — who, of
course, was Thabet. Hidden Brook was indifferent as between $4 million
and $3.95 million; it viewed the $50,000 as a finder's fee. Hidden Brook
did not ask Thabet to do anything improper for the $50,000 and insisted
that the fee
be disclosed in the contract. As a result, every draft of
the contract mentioned the fee, including the draft that Hidden Brook
eventually signed. When Thabet provided the Levasseur Defendants with a
copy of the final purchase agreement, however, he "whited out" the
provision concerning the $50,000 fee.*fn1 The Levasseur Defendants did
not learn about $50,000 the fee until the present litigation was well
Section 4 of the purchase agreement provided that the $200,000 deposit
was to become non-refundable once the "purchaser" informed Hidden Brook
and the escrow agent, via fax, that the pre-purchase inspection was
completed and "purchase of the AIRCRAFT is ACCEPTED." Thabet later
informed the escrow agent, at least twice, that the $200,000 was
non-refundable. On June 10, he sent the escrow agent a fax stating that
"[t]he deposit of $200,000 that you have in escrow on the aircraft King
Air 350 . . . is now non refundable." [Hidden Brook Decl. Ex. 18] More
explicitly, Thabet faxed Abrams on June 21 a copy of a document he had
sent to the escrow agent, which stated: "We are satisfied with the
inspection and all the discrepancy's [sic] have been repaired and
accomplished by Stevens Aviation ordered by Hidden Brook Air Inc and we
accept the pruchase [sic] of the aircraft." [Hidden Brook Decl. Ex. 33]
E. The Closing Approaches
During the week or so after Thabet faxed the executed contract to
Abrams, the Levassuer Defendants took several more steps toward closing the
deal. In his capacity as President of 161768 Canada, Levasseur asked Thabet
to reserve registration "letters" for FL-165 with Canada's Transportation
Department. In addition, 161768 Canada applied for insurance and financing
for the plane. The Levasseur Defendants also obtained an "Export
Certificate of Airworthiness" to facilitate importation of the plane from
the U.S. to Canada. Thabet faxed this document to Levasseur on June 16.
The closing was set for June 21.*fn2 Thabet informed Levasseur, via a
June 18 fax, that $3.8 million should be transferred as the "[b]alance
payable for aircraft" on June 21. The Levasseur Defendants contend that they
never knew that Thabet had signed a purchase agreement for FL-165. But
they do not dispute that a contract would necessarily have had to be in
place before closing, and they do not dispute that Levasseur received the
June 18 fax. The record does not contain any evidence that Levasseur either
(a) protested that the Levasseur Defendants never agreed to buy the plane,
or (b) complained that the price was $50,000 higher than they had discussed
One June 21, with Philpott already in South Carolina waiting to fly the
plane to Quebec post-closing, Levasseur directed Thabet to seek an
extension, claiming that he needed additional time to arrange for
financing. There is no evidence that Levasseur protested that he had never
authorized Thabet to purchase the plane; his sole interest lay in delaying
Thabet faxed Abrams, informing him that the transfer of the amount due on
FL-165 could not take place before June 25. He told Abrams that Levasseur
could not liquidate some mutual funds without incurring a penalty and thus
had to arrange for financing. Hidden Brook consented to postpone the
closing to June 25. More specifically, Hidden Brook informed Levasseur,
through Thabet, that the closing had to occur by 11 a.m. on that day.
[Levasseur Defendants 56.1 Statement ¶¶ 55-56]
Levasseur used the additional days to continue discussions with Spencer
on a deal for a new plane. Clermont Levasseur sent a letter to Spencer on
June 21, stating that he would buy FL-259 from Raytheon for $4.8 million
if Spencer "engage[d] [him]self to find a firm buyer for FL-165 at
$4,000,000 USD and reimburse us the $200,000 USD deposit." [Hidden Brook
Decl. Ex. 34.] Spencer said that Raytheon could not and would not find a
buyer for FL-165, and in response he sent a letter offering to accept
FL-165 as a trade-in for a credit of $4 million if the Levasseur Defendants
purchased FL-259. The Levasseur Defendants responded with a new proposal
under which they would purchase FL-259 if Raytheon "honours the Super King
Air 350, FL-165 agreement, for $4,000,000 USD including, $200,000 USD
reimbursement (certified cheque) to 161768 Canada Inc." And on June 22,
Levasseur informed Spencer via fax that "[w]ithout reception of a firm
agreement from your part and after discussion with my agent, Raymond
Thabet, there will be no delay from the owner of the Super King Air 350,
FL-165, to pursue any discussion. We have to purchase the plane by Friday,
June 25, 1999." Thus, Levassuer admitted, in three separate communications
to Spencer, that he was contractually obligated to purchase FL-165.
Spencer flew to Quebec on June 24 to meet with Clermont Levasseur. He
brought with him a copy of a contract for the purchase of FL-259, and the
two had dinner together alone that night. Clermont Levassuer informed
Spencer that he would not purchase FL-165, Hidden Brook's plane, and he
signed a contract to purchase FL-259.
Spencer arrived at the office of the Levasseur Defendants' lawyer on the
morning of June 25. Hidden Brook claims that Abrams received a call from
Thabet telling him that the deal was off because Levasseur had decided to
buy another airplane. Levasseur testified that he wanted to close by the 11
a.m. deadline, but could not because he did not receive financing until
that afternoon. At 12:45 p.m., 161768
Canada, Inc. closed the deal to
purchase Raytheon's plane, FL-259.*fn3
After the deal with the Levasseur Defendants fell through, Hidden Brook
put FL-165 back on the market. Hidden Brook sold the plane to R.J.M.
Aviation three weeks later, on July 16, 1999, for $3.4 million.
Hidden Brook first sued Thabet on December 8, 1999. It amended its
complaint on March 30, 2000 to sue the Levasseur Defendants. The
Levasseur Defendants moved to dismiss the lawsuit for lack of personal
jurisdiction. They argued that this Court could only exercise
jurisdiction over them, if at all, by virtue of acts performed on their
behalf by Thabet. The Levassuer Defendants denied that Thabet was their
agent and argued that neither their personal contacts with New York nor
Thabet's contacts were sufficient for the Court to exercise its
jurisdiction. I denied the Levasseur Defendants' motion because the
evidence that Thabet was the their agent for the purposes of negotiating
the sale of FL-165 was so overwhelming that no trier of fact could find
otherwise. Hidden Brook Air, Inc. v. Thabet Aviation Int'l Inc., No. 99
Civ. 11865 (S.D.N.Y. filed Aug. 16, 2001). I found that the Levasseur
Defendants' contacts with New York, through their agent Thabet, were
sufficient to satisfy New York's long-arm statute, as well as to meet
constitutional due process standards. Id.
Hidden Brook then amended its complaint again, this time to add Raytheon
as a defendant. This Second Amended Complaint contains three counts: (a) a
breach of contract claim against Thabet Aviation International Inc., (b) a
breach of contract claim against the Levasseur Defendants, and (c) a
tortious interference with contract claim against Raytheon. Thabet has long
since defaulted. The Levasseur Defendants filed a counterclaim against
Hidden Brook for breach of contract.
A party is entitled to summary judgment when there is no "genuine issue
of material fact" and the undisputed facts warrant judgment for the moving
party as a matter of law. Fed.R.Civ.P. 56(c), Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986). When considering a motion for summary judgment,
"the court must view the evidence in the light most favorable to the party
against whom summary judgment is sought and must draw all reasonable
inferences in [its] favor." Matsushita Elec. Indus. Co. Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
The moving party has the initial burden of demonstrating the absence of a
disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party has made such a showing, the non-moving party
must present "specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). The party opposing summary judgment "may not
rely on conclusory allegations or unsubstantiated speculation." Scotto v.
143 F.3d 105, 114 (2d Cir. 1998). Moreover, not every disputed
factual issue is material in light of the substantive law that governs the
case. "Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude summary judgment."
Anderson, 477 U.S. at 248.
A. Hidden Brook's Motion for Summary Judgment on its First Cause of
Action, for Breach of Contract, is Denied
Under New York law,*fn4 "[t]he essential elements of an action for
breach of contract . . . are: (1) formation of a contract between the
parties; (2) performance by plaintiff; (3) non-performance by defendant;
and (4) resulting damages to plaintiff." Nakano v. Jamie Sadock, Inc., No.
98 CIV. 0515, 2000 WL 680365, at *5 (S.D.N.Y. May 25, 2000); see also First
Investors Corp. v. Liberty Mut. Ins. Corp., 152 F.3d 162, 168 (2d Cir.
1998); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir.
Hidden Brook claims that (1) it entered into a valid contract with the
Levasseur Defendants, signed by Thabet, who acted within his authority as
their agent, (2) it fully complied with the terms of the contract, (3) the
Levasseur Defendants failed to perform under the contract, and (4) it
suffered damages as a result of the Levasseur Defendants' breach. In
response, the Levasseur Defendants argue that (1) they did not enter into a
valid contract with Hidden Brook because Thabet did not act as an agent
within the scope of his authority, (2) in any case, the purchase agreement
is void and unenforceable due to misconduct on Thabet's part, (3) it was
Hidden Brook that did not perform under the terms of the purchase
agreement, and (4) Hidden Brook failed to mitigate its damages.
1. Thabet Had Apparent Authority to Sign the Purchase Agreement
It is black letter law that an agent binds his principal when he enters
into a contract within the scope of his authority. British American &
Eastern Co. v. Wirth Ltd., 592 F.2d 75, 80 (2d Cir. 1979) ("An agent serves
under the control and supervision of his principal; so long as he acts
within the ambit of his authority to represent his principal, he binds
him."). In my previous Memorandum Decision and Order, I concluded that the
evidence concerning Thabet's agency for the purpose of negotiating the
FL-165 transaction was so overwhelming that no reasonable trier of fact
could conclude that he was not the Levasseur Defendants' agent. I did not,
however, address questions about the scope or parameters of Thabet's
authority. On this motion, the material issue is whether the scope of
Thabet's authority allowed him to enter into the purchase agreement on
behalf of the Levasseur Defendants.
An agent's authority may be actual or apparent. Actual authority exists
when an agent has the power "to do an act or to conduct a transaction on
account of the principal which, with respect to the principal, he is
privileged to do because of the principal's manifestation to him." Minskoff
v. American Exp. Travel Related Servs. Co., 98 F.3d 703, 708 (2d Cir. 1996)
(quoting Restatement (Second) of Agency § 7 cmt. a (1958)). Actual
authority may be express or implied. The distinction between express and
implied actual authority turns on the nature of the
representation by which
the principal delegates authority to that agent. Express authority is
"[a]uthority distinctly, plainly expressed, orally or in writing."
Nationwide Life Ins. Co. v. Hearst/ABC-Viacom Entm't Servs., 1996 WL
263008, at *8 (S.D.N.Y. May 17, 1996) (quoting Black's Law Dictionary 521
(5th ed. 1979)), while implied authority exists "when verbal or other acts
by a principal reasonably give the appearance of authority to the agent."
99 Commercial St., Inc. v. Goldberg, 811 F. Supp. 900, 906 (S.D.N.Y.
1993). In addition, as Judge Weinfeld explained, under New York law,
"Implied authority" has also been defined as "a kind of
authority arising solely from the designation by the
principal of a kind of agent who ordinarily possesses
certain powers." The general rule in New York with
regard to implied authority is that "an agent employed
to do an act is deemed authorized to do it in the manner
in which business entrusted to him is usually done."
Songbird Jet Ltd., Inc. v. Amax, Inc., 581 F. Supp. 912, 919 (S.D.N.Y.
"Apparent authority is `entirely distinct from authority, either express
or implied,' and arises from the `written or spoken words or any other
conduct of the principal which, reasonably interpreted, causes [a] third
person to believe that the principal consents to have [an] act done on his
behalf by the person purporting to act for him.'" Minskoff, 98 F.3d at 708
(citations omitted) (quoting Restatement (Second) of Agency § 8 cmt.
a, § 27 (1958)). Thus, in contrast to actual authority, apparent
authority does not turn on the representations made by a principal to his
agent, but rather on whether the representations made by the principal to a
third party created the appearance of authority. These representations,
however, need not be made through actual contact between the principal and
third party. See Chem. Bank v. Affiliated FM Ins. Co., 169 F.3d 121, 130
(2d Cir. 1999); Prop. Advisory Group, Inc. v. Bevona, 718 F. Supp. 209, 211
(S.D.N.Y. 1989); Gen. Motors Acceptance Corp. v. Finnegan, 156 Misc.2d 253,
255, 592 N.Y.S.2d 570, 572 (N.Y.Sup.Ct. 1992).
While there exist disputed issues of fact about the parameters of
Thabet's actual authority, there is no dispute that he had apparent
authority to bind Clermont Levasseur to purchase FL-165.
a. There is a Disputed Issue of Fact Concerning
Express Actual Authority
Hidden Brook argues that Thabet had express actual authority to enter
into the purchase agreement. To support this argument, Hidden Brook first
points to Thabet's deposition testimony, in which he states that he showed
the Levasseur Defendants a copy of the purchase agreement before he signed
it, and they authorized him to sign it. Second, Hidden Brook refers the
Court to the letters exchanged between the Levasseur Defendants and
Raytheon in which the Levasseur Defendants admit that they are bound by the
purchase agreement signed by Thabet. Third, Hidden Brook argues that the
Levasseur Defendants' conduct after Thabet signed the purchase agreement,
such as registering FL-165 in Canada in their name and failing to request
that Hidden refund the $200,000 deposit they paid on the plane, demonstrate
they knew and approved of Thabet's actions.
The Levasseur Defendants offer little to counter this showing. Instead,
they rely heavily on the fact that Thabet procured for himself a $50,000
commission from Hidden Brook and then hid that commission from the
The fact that Thabet deceived the Levasseur defendants, however, does not
necessarily preclude Thabet from acting within his authority. Hidden Brook
correctly cites to Judge Hand's opinion in Ricketts v. Pennslyvania R.R.
Co., 153 F.2d 757, 760 (2d Cir. 1946), in which he explains:
[A]n agent does not cease to be acting within the scope
of his authority when he is engaged in fraud upon a
third person. . . . We can see no distinction in
principle between that situation and on in which the
agent deceives, not the third person, but his
Thus, an agent may deceive his principal with respect to a contract that
it is within his authority to enter into, and that deception does not
automatically negate such authority. It is true, that "an agent cannot
bind his principal, even in matters touching his agency, where he is
known to be acting for himself, or to have an adverse interest." Wagner
v. Nichols, 5 A.D.2d 191, 194, 170 N.Y.S.2d 542, 545 (1st Dep't 1958)
(quoting Manhattan Life Ins. Co. v. Forty-Second & G. St. Ferry R.
Co., 139 N.Y. 146, 151, 34 N.E. 776, 777 (1893)). But a principal is
still liable on a contract made by his agent in such circumstances if
"the party with whom the agent deals has no knowledge of the agent's
faults and is not cognizant of any fact charging him or her with
knowledge thereof." 2A N.Y. Jur.2d Agency and Independent Contractors
§ 279 (citations omitted).
Similarly, the Restatement (Second) of Agency states:
A disclosed or partially disclosed principal is subject
to liability upon a contract purported to be made on his
account by an agent authorized to make it for the
principal's benefit, although the agent acts for his own
or other improper purposes, unless the other party has
notice that the agent is not acting for the principal's
Restatement (Second) of Agency § 165 (1958).
The Levasseur Defendants do not allege that Hidden Brooks knew that
Thabet was acting without his principals' knowledge and contrary to their
interests. They describe Thabet's actions as "unethical, dishonest and
illegal." That may not be an unfair characterization. But there is no
evidence that Hidden Brook knew that Thabet was not authorized to ask for
the $50,000 finder's fee. Indeed, on the undisputed evidence, Hidden Brook
insisted that the fee be disclosed in the contract, and it was. There is no
evidence that Hidden Brook knew anything about Thabet's duplicitous
"whiting out" of the term in copies given to the Levasseur Defendants.
The Levasseur Defendants also assert that it is "ludicrous" to think that
Levasseur would agree to a purchase agreement that included a "kickback" to
Thabet, and that their conduct after Thabet signed the purchase agreement
merely indicates that they wanted to purchase FL-165 and were preparing to
do so. Neither of these assertions, however, raises a genuine issue for
trial: The Levasseur Defendants cannot "rely on mere speculation or
conjecture as to the true nature of the facts to overcome a motion for
summary judgment." Knight v. United States Fire Ins. Co., 804 F.2d 9, 12
(2d Cir. 1985).
Nonetheless, there is still a genuine issue of fact concerning express
authority. While Thabet testified that the Levasseur Defendants told him to
sign the contract, Clermont Levasseur testified otherwise:
Q: What I'd like you to do, Mr. Lavesseur, is take a
look, please, at the . . . Exhibit D to that affidavit.
Can you ...