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U.S. v. ABADY

March 9, 2004.

UNITED STATES OF AMERICA, Plaintiff -v.- SAMUEL A. ABADY, Defendant


The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION & ORDER

The United States of America has brought this action to recover $21,287.61 loaned to defendant Samuel A. Abady while he was a student and which, according to the government, he has failed to repay. The parties have now each moved for summary judgment in their respective favors. For the reasons set forth below, plaintiff has shown that there is no triable issue of fact and that it is entitled to summary judgment as a matter of law.

I. Background

  Samuel Abady received loans from the State of Virginia to attend the University of Pennsylvania law school from 1978 to 1981. (Def.'s Decl. Supp. Not. Mot. ("Def.'s Decl."), ¶ 2; Pit's Statement Pursuant to Local Rule 56.1 ("Plt's 56.1 Statement"), ¶ 1; Zebrowski Decl., Exh. B). Virginia Education Loan Authority ("VELA") was the original lender, and the loans were — backed by, and then assumed by, the Virigina State Education Assistance Administration ("VSEAA"). (Pit's 56.1 Statement, ¶ 3; Zebrowski Decl., Exh. B). They were then in turn reinsured by the United States Department of Education, and the United States of America now seeks to recover on behalf of the Department of Education. (Id.). Those loans, for a total sum of Page 2 $14,300, became due nine months after the borrower's estimated date of graduation, with an annual interest rate of seven percent. (Pit's 56.1 Statement, ¶¶ 1, 2).

  In April 1985 — sometime subsequent to Abady's graduation from law school — the VSEAA filed a lawsuit in the Civil Court of the City of New York, based on unpaid promissory notes, to recover $17,875.00, which was comprised of principal plus interest and attorneys' fees. Abady raised several defenses, including lack of personal jurisdiction and the wrongful rejection of payment by him to VELA, which he claimed to have tendered in 1981. (Def's Decl., ¶¶ 18, 30). Abady also claimed that the sum of the loan was improperly calculated.

  The state court action was resolved by a written stipulation and agreement that provided that the state court action was "hereby discontinued and settled with prejudice" on certain terms. (Def.'s Dec!., Exh. 12). In that stipulation, in relevant part, Abady agreed to "bring[] the arrearages current, as if the loan had been paid to the date according to the terms of its instruments" by February 24, 1986 and that the "defendant shall continue to pay out the loan according to the periodic payment schedules set forth in the loan instruments," (Def s Decl., Exh. 12, ¶¶ 4, 5). VSEAA agreed to supply Abady with "mailing envelopes and notices" for him to make periodic payment, (Def's Decl., Exh. 12 ¶ 3). The stipulation also provided that the puipose of the stipulation was to "restore the status quo under the loan instruments as if no lawsuit had been started" and that "[it] shall not operate to or be construed as in any way altering the terms of the loan instruments between the parties." (Id.)

  Abady paid the amount of $7,471.80 to bring the arrears current as of the date of the stipulation. (Def's Decl, ¶ 41, Exh. 13). He subsequently paid $166.04, bringing the total paid to $7,637.84. (Def.'s Decl., ¶ 41). Abady claims that VSEAA and its assignees are in breach of the Page 3 settlement agreement because they did not mail him the appropriate "mailing envelopes and notices." (Def's Decl., Exh. 12). Abady moves for summary judgment on those grounds, because "the Government's assignor was paid all it was entitled to for the loan at issue" in February of 1986, and because this suit is barred by collateral estoppel and res judicata based on the state court adjudication. (Def's Not, Mot., p. 1). When Abady moved for summary judgment on September 10, 2003 he neither served nor filed the required Rule 56.1 statement of disputed facts with that motion. The United States claims that Abady owes the sum of $21,287.61 on the original promissory note, and $1.35 per day after October 31, 2003. (Plt.'s 56.1 Statement, ¶ 9). Plaintiff cross-moves for summary judgment in that amount.

  On January 12, 2004, oral argument was held on these motions. At the commencement of the argument, Abady presented to the Court and plaintiff for the first time a document entitled "Defendant's Statement Made Pursuant to Local Rule 56.1." That Rule 56.1 statement was submitted four months after defendant's motion was made. Moreover, Abady was aware of his obligation to file such a statement because 1) he is an attorney and is presumed to be familiar with the local rules of this district and 2) opposing counsel notified him of his failure to file such a statement on the first page of the government's "Memorandum of Law in Opposition to the Defendant's Motion to Dismiss," dated October 31, 2003, Therefore, Abady's untimely Rule 56.1 statement will not be accepted in support of his motion and in opposition to the government's cross-motion.

  At the time of the oral argument on January 12, 2004, this Court represented that no decision would issue on these motions for one week, in order to give the parties an opportunity to resolve the action consensually. Defendant requested additional time, and the Court agreed to Page 4 reserve disposition on the motions until February 6, 2004. On February 4, 2004, Abady requested a further thirty days in order to attempt to resolve this action, and the Court granted the parties until March 5, 2004 to submit a stipulation of settlement; the parties were informed that a decision would issue thereafter if no stipulation of settlement were submitted for signature. To date, no consensual resolution has been submitted to the Court.

 II. Analysis

 A. Motions To Be Treated as Summary Judgment Motions

  Although Abady styles his motion one "to dismiss this action and for summary judgment," he has filed an affidavit containing extrinsic materials outside the pleadings and has annexed almost a score of exhibits to that affidavit. Many of the exhibits Abady attaches and refers to — such as handwritten phone messages and letters from non-parties to Abady — cannot be presented in a motion to dismiss because they fall outside the pleadings. Because the Court cannot consider those materials in a motion to dismiss, this motion is converted to a motion for summary judgment. Fed.R.Civ.R 12(b), Fed.R.Civ.P. 56; see also Barksdale v. Robinson 211 F.R.D. 240, 242 (S.D.N.Y. 2002); Friedl v. City of New York 210 F.3d 79, 83 (2d Cir. 2000) (quoting Fonte v. Bd. of Managers of Continental Towers Condominium. 848 F.2d 24, 25 (2d Cir. 1988).

 
B. Defendant's Failure to File a Rule 56.1 Statement in Support of His Motion for Summary Judgment, and in Opposition to Plaintiffs Cross-Motion for Summary Judgment
  Defendant failed to serve "a separate, short and concise statement of material facts as to which the moving party contends there is no genuine issue to be tried" until four months after his motion was served. Local Rules of the United States District Courts for the Southern and Page 5 Eastern District of New York, 56.1. When a moving party fails to file such a Rule 56.1 statement, it is within the discretion of the court to either overlook the failure or to deny the motion. See Stone v. 866 3rd Next Generation Hotel. L.LC., No. 00 Civ. 9005, 2002 WL 482558, at *1 n.2 (S.D.N.Y. Mar. 29, 2002): see also Holtz v. Rockefeller & Co., Inc., 258 F.2d 62, 73 (2d Cir. 2001); AIM Int'l Trading. L.LC. v. Valcucine S.p.A., 2003 WL 21203503, at *11 (S.D.N.Y. May, 22 2003). Defendant's motion will not be denied simply for failure to file a Rule 56.1 statement.

  Abady has also failed to file the required Rule 56.1(c) statement in opposition to the plaintiffs cross-motion for summary judgment. Rule 56.1(c) requires a party opposing summary judgment to file a Rule 56.1 statement. (Id.). The consequence of this failure is 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." (Id.); see e.g. Gubitosi v. Kapica. 154 F.3d 30, 31 n.1 (2d Cir. 1998); Versace v. Versace. 2003 WL 22023946, at *1 (S.D.N.Y. Aug. 27, 2003). However, a district court must ensure that there is support in the record for facts contained in unopposed Rule 56.1 statements before accepting those facts as true, Giannullo v. City of New York. 322 F.3d 139, 140-43 (2d Cir. 2003). Because plaintiff has ...


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