The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff A.H.A. International Co., Ltd. ("Plaintiff "or "AHA") commenced this action seeking to recover the balance due for goods sold and delivered to Defendant Amerol Corp. ("Defendant" or "Amerol"). Presently before the Court is AHA's motion for summary judgment. For the reasons set forth below, the motion is granted.
AHA commenced this action on December 30, 2005 seeking to recover One Hundred Three Thousand Four Hundred Fifty ($103, 450.00) Dollars allegedly due from Amerol for goods sold and delivered by AHA to Amerol between September 3, 2004 and February 3, 2005. On January 19, 2006 Amerol filed an answer denying the salient allegations of the complaint.
In July 2006, Plaintiff filed a pre-motion conference letter in connection with a proposed motion for summary judgment. Defendant did not reply and this Court established a briefing schedule for the proposed motion whereby Defendant's opposition to the motion was to be served by October 16, 2006. In fact, Amerol did not oppose the motion and the fully briefed motion was submitted on October 25, 2006. On that same day, Amerol's then counsel filed a motion to withdraw as counsel. The motion to withdraw as counsel was referred to Magistrate Judge Lindsay. By Order dated November 20, 2006 Judge Lindsay granted the unopposed motion to withdraw. (Docket No. 11.) In her Order, Judge Lindsay reminded Amerol that a corporation cannot appear pro se in federal court and must appear through a lawyer. Amerol was given forty-five days to obtain new counsel. The Order concluded, "If the defendant corporation is unable to obtain new counsel, the plaintiff's summary judgment motion will remain unopposed and/or the corporate defendant will be at risk of a default judgment." (Id. at 2..) A copy of Judge Lindsay's Order was served upon Amerol. (See Docket No. 12). To date, no new counsel has entered an appearance on behalf of Amerol.
The following facts are undisputed and fully supported by AHA's submission on its motion for summary judgment.
On or about September 3, 2004, AHA and Amerol entered into a sales contract whereby AHA agreed to sell and Amerol agreed to purchase 30,000 kilograms of a commodity known as BHT FCCIV Food Grade at an agreed upon price of Sixty-nine Thousand ($69,000.00) Dollars, said amount due within 90 days of the date of the bill of lading (the "first contract"). The full amount of said goods was delivered to Amerol on or about November 3, 2004, as reflected in the bill of lading. Amerol never rejected the goods. Accordingly, payment was due on or about February 3, 2005.
On or about October 14, 2004, AHA and Amerol entered into a second contract for the purchase and sale of 15, 000 kilograms of BHT FCCIV food grade at an agreed upon price of Thirty-Nine Thousand Seven Hundred Fifty ($39,750.00) Dollars (the "second contract"). Again, the contract provided for payment within ninety (90) days of the bill of lading. Thereafter a slightly lesser quantity, i.e. 13,000 kilograms, was shipped to and received by Amerol, as reflected in the bill of lading dated November 23, 2004. Amerol accepted the goods and never made a rejection of the goods. Payment in the amount of Thirty-Four Thousand Four Hundred Fifty ($34,450.00) Dollars was due on February 23, 2005.*fn1
Amerol failed to make any payment for the goods delivered and sold pursuant to the first and second contracts such that the balance due from Amerol to AHA is One Hundred Three Thousand Four Hundred Fifty ($103,450.00) Dollars.
I. Standard for Summary Judgment Motion
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
The failure of a non-moving party to oppose a motion for summary judgment does not automatically entitle the movant to relief. "[A] court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial. If the evidence submitted does not meet the movant's burden of production, then summary judgment must be denied even if no opposing evidentiary matter is presented." D.H. Blair & Co., Inc. v. Gottdiener, 4 ...