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Abramo v. Shaw

January 14, 2008


The opinion of the court was delivered by: Lawrence E. Kahn Senior United States District Judge


Plaintiffs Richard J. Abramo, Robert V. Brown, and John A. Tomassetti ("Plaintiffs") commenced the instant action against Defendant Steven Shaw ("Defendant") alleging a breach of a Stock Purchase Agreement. Presently before the Court is Plaintiffs' unopposed motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking an award of compensatory damages in the amount of $100,000 plus interest at the contractual rate of 9% per annum, an award of attorneys fees and costs, and an order directing Defendant to deliver $1,652,962, and any future required amounts, to a surety as collateral pursuant to certain bonding obligations.


The undisputed facts are as follows.*fn1 Plaintiffs are former owners of Tougher Industries, Inc.*fn2 In November 2003, Plaintiffs and Defendant acquired 100% of the shares of capital stock of Tougher Industries from PSEG Energy Technologies, Inc. Plaintiffs and Defendant each acquired a 25% interest in Tougher Industries.

In December 2005, Plaintiffs and Defendant entered into a written Stock Purchase Agreement (the "Agreement"). Pursuant to the Agreement, Plaintiffs agreed to sell to Defendant their shares in Tougher Industries. In exchange, Defendant was obligated to pay Plaintiffs an initial lump sum of $150,000 plus four additional monthly payments of $25,000 each. Payments not paid within three business days of the due date were subjected to interest at 9% per annum.

At the time the parties entered into the Agreement, a surety had issued certain surety bonds with respect to construction jobs of Tougher Industries. Plaintiffs and Defendant were signatories to an agreement of indemnity with the surety for Tougher Industries's obligations. The Stock Purchase Agreement required Defendant "to indemnify and hold [Plaintiffs] harmless against any and all claims that may arise from any and all bonding obligations relating to all construction projects existing as of the date hereof. . . ."

The Agreement was entered into on May 6, 2006. At that time, Plaintiffs conveyed their equity interest in Tougher Industries to Defendant. Defendant, in turn, paid a lump sum of $150,000 to Plaintiffs. Defendant did not, however, make any subsequent payments.

In October 2006, the surety demanded that Plaintiffs and Defendant deposit collateral totaling $480,000 to cover outstanding risks to the surety. Citing to the hold harmless and indemnification provisions of the Agreement, Plaintiffs demanded that Defendant pay the collateral in full himself. Defendant failed to do so. Thereafter, the surety demanded collateral in the total amount of $1,652,962.


Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In applying this standard, courts must " 'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.' " Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001)). Once the moving party meets its initial burden by demonstrating that no material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). Rather, the non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).


a. Payment for Equity in Tougher Industries

Plaintiffs seek a determination that Defendant breached his obligation with respect to the payment terms under section 1.2 of the Agreement. Section 1.2 provides that "[i]n consideration for the purchase by the [Defendant] of the Stock, the [Defendant] shall pay to the [Plaintiffs] on the Closing Date an aggregate amount in cash which represents the sum of $150,000. . . . [Defendant] shall also make four payments of $25,000 each. . . ." The final payment was to be made on December 29, 2006. Late payments were subjected to a 9% per annum interest rate if payments were not made within three business days of the due date.

The undisputed evidence in the record demonstrates that Defendant paid the initial $150,000, but failed to make any additional payments. Accordingly, Defendant has breached the Agreement in the amount of $100,000 (four payments of ...

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