The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
The Republic of Benin (the "plaintiff") brings this action against Beverly Mezei ("Mezei"), Robin Shimoff ("Shimoff"), First American Title Insurance Company of New York, Alfred Koller ("Koller"), and Joel Adechi ("Adechi"), seeking to void two deeds to a parcel of real property located next to the residence of the Ambassador of the Republic of Benin's Mission to the United Nations. The property is located in the Bronx, New York. Deed I, signed by Thomas Guedegbe ("Guedegbe"), the former Director of Administration of the Republic of Benin's Ministry of Foreign Affairs, purports to convey the property to Shimoff. Deed II purports to convey the property from Shimoff to Mezei. The plaintiff alleges that Guedegbe lacked the proper authority to convey the property as an agent of Benin and that the defendants lack the writing required by the statute of frauds to show Guedegbe had such authority. The defendants Shimoff and Mezei (the "defendants") respond that Guedegbe is not an agent for statute of fraud purposes and therefore did not need written authorization to convey the property. Moreover, the defendants argue that Guedegbe had both actual and apparent authority to convey the property. The plaintiff moves for summary judgment pursuant to Federal Rule of Civil Procedure 56 and defendants Mezei and Shimoff cross-move for summary judgment.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "[o]nly 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); see also Robins v. New York City Bd. of Educ., No. 07 Civ. 3599, 2010 WL 2507047, at *1 (S.D.N.Y. June 21, 2010).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the non-moving party to come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Robins, 2010 WL 2507047, at *1.
The following facts are undisputed unless otherwise noted. On October 1, 2004, Deed I was executed between the Republic of Benin by Guedegbe, Benin's Director of Administration, Ministry of Foreign Affairs, and Shimoff. Deed I purports to convey a plot of land located in Bronx County, Block 5821, Lot 2804, to Shimoff. Public records reveal that Shimoff paid $650,000 for the property. A year later, on October 11, 2005, Shimoff executed Deed II with Mezei, purporting to convey the property to Mezei for $1,250,000. See Republic of Benin v. Mezei, 483 F. Supp. 2d 312, 313 (S.D.N.Y. 2007).
The closing of Deed I was attended by Jacob Selechnick (Shimoff's father) and his lawyer Edward Friedman, Barry Chasky ("Chasky"), Koller, and Guedegbe. (Chasky Dep. Ex. 3.) Koller was the attorney for Benin, and Chasky was the closing attorney for First American Title Insurance. (Chasky Dep. 6.) Chasky was aware at the closing that the only officials who could convey title on behalf of Benin were the Benin Ambassador, the Foreign Minister of Benin, and its Consul, and that none of these officials were present. (Chasky Dep. 51-52.)
It is undisputed that no document granting Guedegbe authority to enter into the transaction was recorded with the county clerk or register pursuant to New York Real Property Law § 331.*fn1 Benin, 483 F. Supp. 2d at 314. Moreover, it is undisputed that no such writing has been produced, and while the defendants argue that archiving of documents in Africa is sometimes incomplete, no party affirmatively argues that such a writing exists. (Pl. Benin's Statement of Material Undisputed Facts ("Pl.'s 56.1 Stmt.") ¶ 1, Oct. 14, 2009; Defs.' Counterstatement Pursuant to Local Rule 56.1 ("Defs.' 56.1 Stmt.") ¶ 1, Oct. 30, 2009.)
Under these circumstances, Chasky was aware of the need for a writing to confirm that the property was conveyed by the proper Benin authorities. (Chasky Dep. 66-68.) Therefore, Koller signed a handwritten letter drafted by Chasky indicating that Guedegbe had authority to convey the property and that Koller would later forward a letter from the Foreign Minister confirming that authority. (Chasky Dep. Ex. 9.) The body of the letter reads:
This is to advise that the Foreign Minister of the Republic of Benin has told me the [sic] Thomas Guedegbe, Director of Administration, Ministry of Foreign Affairs of said Republic, has authority to execute all documents in connection with the sale of the above premises to Robin Shimoff on this date. I shall forward a letter to this effect from the Foreign Minister. (Chasky Dep. Ex. 9, "The Chasky Letter.") It is undisputed that no such letter was ever forwarded or produced. (Pl.'s 56.1 Stmt. ¶ 1, Oct. 14, 2009; Defs.' 56.1 Stmt. ¶ 1, Oct. 30, 2009.)
Shimoff claims, for the first time on this motion, that she and her father negotiated the terms of the sale with Guedegbe and Adechi, Benin's Ambassador to the United Nations. (Defs.' 56.1 Stmt. ¶¶ 5-13.) Koller asserts that he had discussions with Rogatien Biaou ("Biaou"), the Foreign Minister of Benin, that confirmed the authority of Guedegbe to enter into the transaction. (Defs.' 56.1 Stmt. ¶ 17.)
Benin represents that it was not aware of the alleged sale of the property until November 2005 when Mezei built a fence on the property. (Pl.'s Br. 5, Sept. 30, 2009; see also Zinsou Decl. ¶ 13.) The plaintiff subsequently brought this action seeking to void Deeds I and II.
The plaintiff has previously moved for summary judgment, arguing that Deed I was forged and that the conveyance of Deed I was invalid under the Foreign Missions Act, 22 U.S.C. §§ 4301-16. Benin, 483 F. Supp. 2d at 313. The Court denied the motion, finding that factual disputes existed regarding whether the deed was forged and that the Foreign Missions Act did not render the deed void. Id. at 319.
The plaintiff now moves for summary judgment arguing that Deed I is void because the statute of frauds and the equal dignities rule would require that any conveyance by Guedegbe include a written formal authorization for Guedegbe to transfer the property, and that no such formal authorization has been produced or alleged to exist. Moreover, the plaintiff argues that an agent's actions on behalf of a sovereign government require actual, not merely ...