The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
Plaintiff BOSCOV'S Department Stores, LLC ("Boscov's") brought this
action against AKS International AA Corp. ("AKS") and its sole
shareholder and president, Kalman Strobel, to recover an alleged
overpayment of $198,868.00 for repaired jewelry. The defendants
subsequently interposed counterclaims based on agreements relating to
other jewelry transactions. The parties have consented to disposition of
this matter by a United States Magistrate Judge pursuant to
28 U.S.C. § 636(c).
BOSCOV'S has now moved for summary judgment pursuant to Fed.R.Civ.P.
56 with respect to its breach of contract claim in the amount of
$198,868.00 and with respect to the counterclaims asserted by AKS and
Strobel. See Notice of Motion, filed October 20, 2003. Strobel
has cross-moved for summary judgment against BOSCOV'S to dismiss the
complaint against him personally. See Notice of Cross-Motion,
filed November 14, 2003. For the reasons stated below, BOSCOV'S motion
for summary judgment on its breach of contract claim against AKS is
granted, BOSCOV'S motion for summary judgment dismissing the
counterclaims is denied,
and Strobel's cross-motion for summary judgment dismissing the
claims against him personally is granted.
This Court has already decided a motion and cross-motion for summary
judgment relating to Strobel's personal liability, Boscov's Dep't
Stores. LLC v. AKS Int'l AA Corp., 2003 WL 21576405 (S.D.N.Y. July
11, 2003), familiarity with which is assumed. In that decision, summary
judgment was granted in favor of Boscov's solely on the issue of whether
the promise by Strobel to answer for the debt of AKS was enforceable
despite the Statute of Frauds. Id. at *6. Summary judgment was
denied in all other respects, including on the ultimate question of
Strobel's liability inasmuch as it was unclear from the record whether
the conditions Strobel placed on his promise had been met. Id.
Three issues have been raised in the instant motions: (1) on Boscov's
motion, whether AKS is liable for the amount of Boscov's overpayment; (2)
on Strobel's cross-motion, whether the conditions placed on Strobel's
promise have been met, which would render Strobel personally liable for
the amount of overpayment; and (3) on Boscov's motion, whether Boscov's
is liable on the defendants' counterclaims. Each is discussed separately.
II. APPLICABLE LEGAL PRINCIPLES
Summary judgment may not be granted unless "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 a judgment as a
matter of law." Fed.R.Civ.P. 56(c): see Celotex Corp. v. Catrett.
477 U.S. 317, 322-23 (1986). A material issue is a "dispute  over facts
that might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby. Inc.,
477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if
the evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Id. Thus, "`[a] reasonably disputed, legally
essential issue is both genuine and material'" and precludes a finding
of summary judgment. McPherson v. Coombe. 174 F.3d 276, 280 (2d Cir.
1999) (quoting Graham v. Henderson. 89 F.3d 75, 79 (2d Cir. 1996)).
When determining whether a genuine issue of material fact exists,
courts must resolve all ambiguities and draw all factual inferences in
favor of the nonmoving party. See, e.g., Savino v. City of New
York. 331 F.3d 63, 71 (2d Cir. 2003) (citing Anderson. 477
U.S. at 255); McPherson. 174 F.3d at 280. Nonetheless, "mere
speculation and conjecture is insufficient to preclude the granting of
the motion." Harlen Assocs. v. Incorporated Vill. of Mineola,
273 F.3d 494, 499 (2d Cir. 2001) (citing Western World Ins. Co. v.
Stack Oil. Inc., 922 F.2d 118, 121 (2d Cir. 1990)).
III. AKS'S LIABILITY FOR THE OVERPAYMENT
Paragraph 11 of the Complaint alleged that "Boscov's, in error,
overpaid AKS by the approximate amount of $198,868.00 for the repair
services provided by AKS." Complaint, filed February 21, 2001
("Complaint") (annexed as Ex. A to Defendants' Rule 56.1 Statement of
Material Facts, filed November 14, 2003 ("Def. 56.1")), ¶ 11.
Boscov's motion for summary judgment on its claim for breach of contract
against AKS is based on its assertion that "Defendants have admitted that
Boscov's overpaid AKS $198,868.00." Plaintiff's Statement of Undisputed
Material Facts, filed October 20, 2003 ("PL 56.1"), ¶ 7.
Boscov's is correct that AKS has admitted the allegation in paragraph
11 of the Complaint. In fact, it did so in two distinct ways. First, in
the Answer, AKS denied the
allegations of a number of paragraphs in the Complaint but did not
deny the allegations contained in paragraph 11. See Answer with
Affirmative Defenses and Counterclaims, dated February 11, 2002
("Answer") (annexed as Ex. B to Def. 56.1), ¶ 1. Pursuant to
Fed.R.Civ.P. 8(d), "[a]verments in a pleading to which a responsive pleading
is required . . . are admitted when not denied in the responsive
pleading." Defendants now attempt to avoid this conclusion by stating,
"Strobel only admitted paragraphs 11 and 16 of the complaint." Def. 56.1
¶ 10. Insofar as this statement is intended to mean that AKS did not
admit paragraph 11, the argument is rejected. The Answer states
unequivocally that it was being submitted on behalf of both Strobel and
AKS. See Answer at 2.
Second, AKS admitted the fact of Boscov's overpayment through its
failure to controvert Boscov's contention on this point, see PL
56.1 ¶ 7, in AKS's counterstatement required under Local Civil
Rule 56.1. See Def. 56.1. Local Civil Rule 56.1(c) provides that
"[a]ll material facts set forth in the statement required to be served by
the moving party will be deemed to be admitted unless controverted by the
statement required to be served by the opposing party."
Thus, Boscov's is entitled to summary judgment on the issue of whether
it overpaid AKS in the amount of $198,868.00 as there is no "genuine
issue for ...