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Kebede v. Johnson

September 8, 2006

AMSAL KEBEDE, PRO SE PLAINTIFF,
v.
LARRY JOHNSON, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM & ORDER

Pro se plaintiff, Amsal Kebede, brings this action against defendants, New Look Enterprises, Inc. and Julio Maldonado, asserting fraud, fraud in the inducement, conspiracy to commit fraud, and breach of covenant of fair dealing and good faith.*fn1 Plaintiff further asserts claims of malpractice and conspiracy to commit fraud against defendant, Larry Johnson. Defendant Johnson now moves for summary judgment dismissing plaintiff's fraud and malpractice claims. For the following reasons, defendant's motion is granted in its entirety.

Facts

Construed in the light most favorable to plaintiff, the facts, which are largely undisputed, are as follows:

On January 10, 2002, Plaintiff, an experienced businessman, entered into a "Purchase and Sales Agreement" ("Purchase Agreement") for the purchase of a business located at 175 Targee Street, Staten Island, New York, (the "Business") from Seller/Defendant, New Look Enterprises, Inc. ("New Look"). The Business consists of a convenience store, gas station, and carwash.

Plaintiff retained Defendant Johnson to represent him in the purchase of the Business. Johnson is an attorney admitted to practice law in New York state. (Johnson Aff. at ¶ 5.) Johnson opened his own law office in June 2001, after spending two years in the corporate department of the law firm of Akin Gump Strauss Hauer Feld LLP, working on "private equity transactions and due diligence searches for major mergers and acquisitions." (Id.)

In December 2001, plaintiff learned of the Business sale through a newspaper advertisement and contacted New Look's broker, Julio Maldonado ("Maldonado"). (See Pl.'s Aff. at 1-2.) Shortly thereafter, plaintiff was furnished with a "Business Profile," met the principals of New Look, and visited the Business location on six separate occasions prior to closing. (See Pl.'s Aff. at 2; Pl.'s Dep. at 60-63.)

During plaintiff's visits to the Business location, he observed the number of patrons frequenting all three parts of the Business. (See Pl.'s Dep. at 63.) Specifically, plaintiff observed the number of gallons of gasoline delivered to the Business and inspected the bills of lading reflecting the costs associated with the deliveries. (See Pl.'s Dep. at 76-77; Macchia Dep. at 10-11.) To determine the Business' "sales volumes and profits[,]" plaintiff consulted New Look's Business Profile because New Look did not possess any sales volume records. (Pl.'s Dep. at 77-78; Mahfooz Dep. at 28, 33.)

After much negotiation, plaintiff and New Look's principals agreed on a purchase price of $200,000.00. (Pl.'s Opp at 2; Pl.'s Dep. at 88.) Plaintiff was then referred to Johnson whom he retained to represent him in the purchase of the Business. (Pl.'s Aff. at 2.) Johnson also represented New Look in the transaction. (Pl.'s Dep. at 99.) Both Plaintiff and New Look signed individual retainer agreements acknowledging and consenting to Johnson's dual representation. (See Brownell Aff. Ex. "O" & "P;" Pl.'s's Dep. at 99-101.) The relevant portion of plaintiff's retainer agreement reads: "You acknowledge and consent to my representing both you and New Look Enterprises, Inc., the Seller of the above mentioned properties." (Brownell Aff. Ex. O.)

During Johnson's representation of plaintiff, Johnson reviewed and explained to plaintiff the terms of the Purchase Agreement and promissory note between plaintiff and New Look. (See Pl.'s Dep. at 34-35, 40.) Plaintiff testified that he read and understood the terms of the Purchase Agreement and promissory note. (See Pl.'s Dep. at 34-35, 39-40.) Johnson provided plaintiff with a due diligence checklist, outlining the areas of investigation necessary to adequately inform a buyer of the nature of a business being purchased. (See Johnson Aff. at ¶ 9; Brownell Aff. Ex. Q.) Johnson further discussed the contents of the checklist with plaintiff, including the need to search for records. (See Johnson Aff. at ¶ 9; Pl.'s Dep. at 39.) Johnson conducted an environmental violation search and contacted the landlord and gas supplier for the Business and negotiated a new lease and gas supply agreement. (See Johnson Aff. at ¶¶ 16-17.) He also explained to plaintiff the contents and provisions of plaintiff's new lease. (Pl.'s Dep. at 72.) Finally, Johnson attempted to obtain business and tax records and was told that none existed because the sellers were in operation for less than a year. (See Johnson Aff. at ¶ 15). Johnson continued representing plaintiff until the closing on January 10, 2002.

On February 10, 2002, plaintiff defaulted on the first payment of the promissory note between plaintiff and New Look. (See Pl.'s Dep. at 40-42.) Plaintiff ultimately defaulted on the entire promissory note. (See Pl.'s Dep. at 40.) In addition, he failed to pay for the remaining inventory as agreed to in the Purchase Agreement. (See Pl.'s Dep. at 102.) Although plaintiff contends that he was delinquent in his payments due to the Business' net loss, the record reveals that plaintiff had sufficient funds to pay off the note and remaining inventory. In March 2002, plaintiff was approved for a loan in the amount of $680,000. (See Pl.'s Dep. at 46.) Moreover, one of plaintiff's employees, Raja Mahfooz, who delivered the Business' daily books and cash receipts to plaintiff, testified that the car wash was profitable. (See Pl.'s Dep. at 122; Mahfooz Dep. at 63, 67.) Finally, upon reviewing plaintiff's books, Johnson's expert, Arthur C. Cohen*fn2 calculated an average monthly profit of $8,314.00*fn3 and an annual projected net profit of approximately $99,768.*fn4

In June 2002, plaintiff filed the instant malpractice action against Johnson for "[f]ailing to suggest or counsel the Plaintiff in conducting a [sic] due diligence prior to purchasing the business. . . . Failing to determine if any environmental liability exists . . . . Failing to do a UCC and tax search against the Seller to determine financial status . . . [and] permitting the Plaintiff to close the transaction without any solution in the event of the purchaser's inability to secure financing." (Compl. at ¶ 46.) Plaintiff also alleges conspiracy to commit fraud against Johnson, New Look and principals of New Look. In September 2002, defendant Johnson joined issue. After an attempt at arbitration, (see fn. 1), and conducting some discovery, Johnson filed the instant motion for summary judgment dismissing plaintiff's malpractice and conspiracy claims.

Discussion

I. Summary Judgment ...


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