The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn*] [fn*] Rachel Rubin, a spring 2005 intern in my Chambers, and currently a third-year law student at Brooklyn Law School, provided substantial assistance in the research and drafting of this Opinion.
Plaintiff, A&J Produce Corp. ("A&J"), filed the instant action
against Sung L. Chang d/b/a MC Park and MC PM (collectively,
"Chang"), Natural Farms, Inc. ("Natural"), Jong Kim ("Kim"),
Bergen Farms Market, Inc. ("Bergen"), Jong Soo Lee ("Jong Lee"),
Union Farm, Inc. ("Union"), Kyu Jin Shon ("Shon"), Woodbridge
Farm, Inc. ("Woodbridge"), Sung Sik Park ("Park"), Teaneck Rd.
Farms, Inc. ("Teaneck"), Heuk S. Lee ("Heuk Lee"), Theresa &
Joseph Corp. ("Theresa"), and Onyi Nam ("Nam") to recover payment
for unpaid produce sold pursuant to the Perishable Agricultural
Commodities Act ("PACA"), 7 U.S.C. § 499a et seq. Pursuant to
Fed.R.Civ.P. 56, Kim, Natural, Union, and Shon (collectively,
the "Kim Defendants"), joined by Woodbridge and Park
(collectively, the "Woodbridge Defendants") and Chang, move for
summary judgment.*fn1 For the reasons set forth below,
Defendants' motion for summary judgment is GRANTED.
A&J is a wholesaler of fresh fruits and vegetables that
operated at 140 New York City Terminal Market, Hunts Point, New York. (Am. Compl. at ¶ 3.)
Chang was a deliveryman in the New York metropolitan area for
small green grocery retailers, including Defendants Kim and
Woodbridge (together, "Retailers").*fn2 (Chang Aff. at ¶ 6.)
The other defendants were allegedly dealers in perishable
agricultural commodities in the same area.*fn3 (Am. Compl.
at ¶¶ 6-17.)
The manner in which Chang conducted business is uncontested.
Chang was a produce deliveryman. (Alexander Park Aff. at ¶ 3.) In
the evenings, Retailers ordered their produce for the next day
through Chang. The following day, Chang drove his truck to Hunts
Point, filled the orders, and delivered the produce to the
Retailers. (Chang Aff. at ¶ 7.) Upon delivery of the produce,
Chang received payment for the produce from the Retailers. Chang
was to deliver the payment to the seller. The form of payment
varied; sometimes the Retailers provided cash, while other times
Retailers paid by checks made out to A&J. Chang delivered these
payments to the produce sellers at Hunts Point, including A&J.
(Chang Aff. at ¶ 8; Bonomolo Decl. at ¶ 3; Lacher Decl. at ¶ 3.)
Meanwhile, the Retailers paid Chang a flat fee for the delivery
service. (Chang Aff. at ¶ 5.)
In December 2003, A&J filed the instant action against Chang
for failure to pay for perishable agricultural commodities sold
and delivered to him. (Compl. at ¶¶ 8-11) (Dckt. 1.) A&J
simultaneously moved for a preliminary injunction to require
Chang to place in trust the amount of the unpaid invoices. (Dckt.
3.) As part of his opposition to Plaintiff's application for a
preliminary injunction, Chang included names and addresses of
Retailers who were customers of A&J. (Chang Aff. at ¶¶ 13, 15,
17.) Shortly thereafter, the motion for preliminary injunction
was withdrawn on consent. (Dckt. 8.) In May 2004, A&J filed an
Amended Complaint which added the Retailers named by Chang in his
Opposition to the Preliminary Injunction as defendants. (Am.
Compl.) (Dckt. 15.)
In September 2004, Woodbridge Defendants interposed an Answer
with Affirmative Defenses and Cross-Claims. (Woodbridge Ans.)
(Dckt. 32.) Woodbridge asserted a cross-claim that it paid Chang for all of A&J's produce delivered to it, and
that Chang failed to deliver the money to A&J. (Woodbridge Ans.,
Cross-Claims at ¶¶ 9-14.)
A. Summary Judgment Standard Fed.R.Civ.P. 56(c)
A court will not grant a motion for summary judgment unless it
determines that there is no genuine issue of material fact and
the undisputed facts are sufficient to warrant judgment as a
matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 250 (1986). The party opposing summary judgment
"may not rest upon the mere allegations or denials of the adverse
party's pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether there is a genuine issue of material fact,
the Court must resolve all ambiguities, and draw all inferences,
against the moving party. United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks
Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). It is not
the court's role to resolve issues of fact; rather, the court may
only determine whether there are issues of fact to be tried.
Donahue, 834 F.2d at 58 (citations omitted). However, a
disputed issue of material fact alone is insufficient to deny a
motion for summary judgment, the disputed issue ...