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Petrello v. White

December 30, 2008

ANTHONY G. PETRELLO AND CYNTHIA A. PETRELLO, PLAINTIFFS,
v.
JOHN C. WHITE, JR., WHITE INVESTMENT REALTY, LP., DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM

This case centers around an August 25, 1998 contract of sale (the "Contract") for 9.56 acres of waterfront property located in Sagaponeck, New York (referred to as lots 4, 5, and 6). In a Memorandum and Order dated February 2, 2006, familiarity with which is presumed, this Court (1) granted Plaintiffs' motion for summary judgment seeking (a) specific performance of the Contract for the sale of lots 4, 5, and 6, and (b) dismissal of Defendants' counterclaims for common law fraud, fraud in the inducement, breach of fiduciary duty, breach of constructive trust, and a declaratory judgment that the Contract is null and void; (2) denied Defendants' motion for judgment as a matter of law; (3) denied Defendants leave to amend to add a proposed sixth counterclaim and (4) granted Defendants leave to amend to add their proposed seventh and eighth counterclaims. By Memorandum and Order dated August 7, 2007, familiarity with which is also presumed, the Court granted Plaintiffs' motion to dismiss the seventh and eighth counterclaims, denied Defendants' motion for reconsideration and vacatur of the February 2, 2006 Order, and granted Defendants' motion for a stay pending appeal. By decision dated July 10, 2008, the Second Circuit dismissed Defendants' appeals from the aforementioned orders for lack of an appealable order. See Petrello v. White, 533 F.3d 110, 112 (2d Cir. 2008).

In a rare moment of consensus, Plaintiffs and Defendants now share the same goal: to have the Second Circuit review, as soon as possible, this Court's grant of summary judgment in favor of Plaintiffs on their claim for specific performance of the sale of lots 4, 5, and 6. The parties differ, however, on how to achieve that goal and whether a stay pending appeal should be entered. Plaintiffs seek the entry of both an injunctive order that is sufficiently specific to satisfy the requirements of Rule 65 and certification of partial final judgment under Rule 54(b). Plaintiffs oppose any stay pending appeal and seek to have the closing of sale within ten days of entry of any order or judgment. Defendants, on the other hand, oppose the entry of an injunctive order and seek certification of a partial final judgment, with a stay of said judgment pending appeal.

As discussed below, having found that the requirements of Rule 54(b) are met, the Court shall certify a partial judgment. The partial judgment shall include the dismissed counterclaims and the claim for specific performance of the sale of lots 4, 5, and 6 and, with regard to the aforementioned specific performance, shall direct the closing of title on April 3, 2009, with no stay thereof.

Discussion

Rule 54(b) Certification

"Rule 54(b) is designed to facilitate the entry of judgments upon one or more but fewer than all claims... in an action involving more than one claim.... The basic purpose of Rule 54(b) is to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim... until final adjudication of the entire case by making an immediate appeal available." Wright & Miller, 10 Federal Practice and Procedure § 2654 (1998). However, "[r]espect for the historic federal policy against piecemeal appeals requires that a Rule 54(b) certification not be granted routinely. The power should be used only in the infrequent harsh case where there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal." Citizens Accord, Inc. v. Town of Rochester, 235 F.3d 126, 128-29 (2d Cir. 2000) (per curiam) (internal citations and quotation marks omitted).

Rule 54(b) provides:

When an action presents more than one claim for relief-whether as a claim, counterclaim, cross-claim, or third-party claim-or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

Fed. R. Civ. P. 54(b).

"Rule 54(b) contains three prerequisites for concluding that a decision or order is a final judgment: (1) multiple claims or multiple parties must be present, (2) at least one claim, or the rights and liabilities of at least one party, must be finally decided within the meaning of 28 U.S.C. § 1291, and (3) the district court must make an express determination that there is no just reason for delay and expressly direct the clerk to enter judgment." In re Air Crash at Belle Harbor, 490 F.3d 99, 108-09 (2d Cir. 2007) (internal quotations omitted) (quoting Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1091 (2d Cir. 1992)).

When multiple claims are involved, "a court should consider the degree to which the adjudicated claim is separable from the claims remaining in the case...." Richardson v. City of New York, 2007 WL 1732424, *1 (S.D.N.Y. June 14, 2007). A court should not enter a Rule 54(b) judgment on a particular claim unless it is "separable from the claims that survive." Cullen v. Margiotta, 811 F.2d 698, 711 (2d Cir. 1987), overruled on other grounds, Agency Holding Corp. v. Malley Duff & Assoc., 483 U.S. 143 (1987); see also Curtiss-Wright Corp. v. Gen'l Elec. Co., 446 U.S. 1, 8 (1980). The court must determine "whether the claims [sought to be certified] [a]re separable from the others remaining to be adjudicated and whether the nature of the claims already determined [i] s such that no appellate court w[ill] have to decide the same issues more than once even if there [a]re subsequent appeals." Curtiss-Wright Corp., 446 U.S. at 8. A claim is "separable" if it embraces "at least some different questions of fact and law and could be separately enforced or'if different sorts of relief' are sought." Cullen, 811 F.2d at 711. "When these features are present, claims may be considered separate even if they have arisen out of the same transaction or occurrence." Id. "[T]he Second Circuit has instructed that "claims'inherently inseparable' from or'inextricably interrelated' to each other are inappropriate for rule 54(b) certification." Richardson, 2007 WL 1732424 *1 (quoting Ginett, 962 F.2d at 1096).

Factor one is met as there are multiple claims asserted in this action. Turning to factor two, the Court concludes that both the Court's grant of summary judgment on Plaintiffs' claim for specific performance of the sale of lots 4, 5, and 6, and the dismissal of Defendants' counterclaims "meet[] the standard of finality governing independent litigation." In re Air Crash at Belle Harbor, 490 F.3d at 109 (quoting Horn v. Transcon Lines, Inc., 898 F.2d 589, 594 (7th Cir. 1990)). "Generally, a final order is an order of the district court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Rabbi Jacob Joseph School v. Province of Mendoza, 425 F.3d 207, 210 (2d Cir. 2005) (internal quotations omitted) (quoting Hallock v. Bonner, 387 F.3d 147, 152 (2d Cir. 2004)).

The dismissal of Defendants' counterclaims for common law fraud, fraud in the inducement, breach of fiduciary duty, breach of constructive trust, and a declaratory judgment that the Contract is null and void by Memorandum and Order dated February 2, 2006, and the dismissal of Defendants' counterclaims premised upon alleged breaches of a settlement agreement by Memorandum and Order dated ...


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