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May 5, 2003


The opinion of the court was delivered by: Constance Baker Motley, United States District Judge


This case involves a claim of breach of contract regarding the sale of a cooperative apartment in Manhattan, brought into federal court on the basis of diversity jurisdiction. Plaintiff has moved for summary judgment. For the reasons that follow, that motion is granted.


Plaintiff, Mark DiGiulio ("DiGiulio"), originally brought suit seeking specific performance on a contract for the purchase and sale of a cooperative apartment — specifically, Penthouse A of the apartment building located at 433 East 51st Street, New York, New York ("the apartment" or "Penthouse A"), owned by defendant Franklin Robin ("Robin"). Under the terms of the contract, Robin was to sell his apartment to DiGiulio for $225,000. After signing that contract, DiGiulio assigned his rights in the contract to Carl and Marsha Hewitt ("the Hewitts") for $390,000. At that point, according to plaintiff, Robin refused to close on the apartment, believing that he had been defrauded. Robin has asserted a counterclaim based on, inter alia, fraudulent inducement by DiGiulio, who, Robin claims, told him that $225,000 was a reasonable price and that he had knowledge that comparable apartments in the building had sold for approximately that amount.*fn1

Robin is eighty-five years old and is in failing health. Amended Answer at 5. Prior to the events that have brought the parties to court, Penthouse A was occupied by Joseph Mann ("Mann"), who was a close personal friend of Robin, id.; Robin has never lived in the apartment. See Certification of Kevin N. Starkey, Ex. E ("Robin Deposition") at 21. Mann passed away on May 6, 2000. Answer, ¶ 10. Soon thereafter, DiGiulio and Robin communicated with each other (whether through a third party or not is in dispute) to discuss the sale of the apartment by Robin to DiGiulio. Id., ¶ 11. Robin claims that DiGiulio "falsely and fraudulently" told Robin that the market value of the apartment was $225,000, and that he knew that was the market value based on the sale prices of comparable apartments in the same building. Id., ¶¶ 13-14.

Robin and DiGiulio entered into a contract for the purchase and sale of the apartment. Pl.'s Statement of Material Facts Pursuant to Local Rule 56.1 ("Pl.'s 56.1 Statement"), ¶ 5 & Ex. 5 ("Contract").*fn2 Robin was represented by an attorney, Charles Starkey, Esq., in connection with the transactions at issue in this case. Id., ¶ 3. Neither Robin nor his attorney made any effort to ascertain the market value of the apartment before signing the contract and delivering it to DiGiulio Id., ¶ 13. After the contract was signed but before the closing, DiGiulio assigned his rights to the apartment under the contract to the Hewitts. Id., ¶ 20. Robin agreed, in writing and represented by counsel, to DiGiulio's assignment of his rights to a third party. Id., ¶¶ 15, 19 & Ex. 9 ("Assignment of Contract"). The consideration for the agreement was DiGiulio's agreement to pay Robin's entire "flip tax" at closing. Pl.'s 56.1 Statement, ¶ 16; Assignment of Contract.


Plaintiff filed suit in New York Supreme Court; defendant removed to federal court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332 and 1441. Originally, the Hewitts joined DiGiulio in suing for specific performance. Later, they reached a settlement with Robin wherein he sold them the apartment for $225,000, the same amount DiGiulio was supposed to pay him under the terms of the contract. Judge Batts, to whom this case was originally assigned, approved the settlement between Robin and the Hewitts over DiGiulio's objection. Stipulation of Dismissal With Prejudice dated March 19, 2002. Accordingly, the specific performance claim dropped out (there no longer being an object of the contract), and DiGiulio was left with a claim for roughly $165,000 (plus interest) in damages.


I. Legal Standards — Summary Judgment

A motion for summary judgment should only be granted when "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted).

In deciding such a motion, the court must "assess the record in the light most favorable to the non-movant and . . . draw all reasonable inferences in its favor." Delaware and Hudson Railway Co. v. Connecticut Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990). In order to prove that a genuine issue of material fact exists, the party opposing the motion "may not rest upon the mere allegations or denials of the pleading[s]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324; Twin Lab. Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). In this vein, the Second Circuit has noted that "conclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). Further, "[t]here must be more than a scintilla of evidence and more than some metaphysical doubt as to the material facts." Cablevision Systems Corp. v. Town of East Hampton, 862 F. Supp. 875, 880 (E.D.N.Y. 1994), affd, 57 F.3d 1062 (2d. Cir. 1995). This Circuit has declared summary judgment a useful "tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United Nat'l Ins. Co. v. Tunnel, Inc., 988 F.2d 351, 355 (2d Cir. 1993).

II. Defendant's Claims of Fraud Fail as a Matter of Law

Robin's first and third causes of action in his counterclaim are fraudulent inducement and conspiracy to defraud, respectively. ...

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