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Friedman v. Schwartz

September 30, 2010

COREY FRIEDMAN, PLAINTIFF,
v.
MARK SCHWARTZ, DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiff Corey Friedman ("Plaintiff") commenced this action in diversity alleging that Defendant, Mark Schwartz ("Defendant"), breached their loan agreement ("Loan" or "Agreement"). Presently before the Court is Plaintiff's motion for summary judgment. For the reasons discussed below, Plaintiff's motion is DENIED.

BACKGROUND

Plaintiff is seeking to recover $100,000.00, plus interest, representing money he loaned to Defendant on October 1, 2003. According to Plaintiff,*fn1 Defendant was the producer of a show called "Harmony," based on the music of Barry Manilow. Defendant solicited Plaintiff to invest monies during meetings held in New York. Defendant allegedly represented that he would give Plaintiff a lien on his condominium in Florida as security for the Loan. Eventually, Plaintiff agreed to lend Defendant $100,000.00 with a ten-percent interest rate. (Pl.'s 56.1 Stmt. ¶¶ 4-8.) Accordingly, Plaintiff wired the funds to a bank account maintained by Defendant for the show at JP Morgan Chase, located at 3 Times Square, New York, New York. (Id. ¶ 10.)

Despite completing the wire, Plaintiff never received documentation memorializing the Agreement with Defendant. After wiring the money, however, there were some contacts between the Plaintiff and Defendant, though it is unclear who initiated the contacts on all occasions. The parties exchanged e-mails on several occasions and discussed the debt repayment. (Id. ¶¶ 16-23.)*fn2 Therein, Plaintiff repeatedly attempted to get Defendant to admit that he was personally liable for repayment of the loan. Despite these attempts, however, Defendant did no more than make promises that Plaintiff would be repaid, notably omitting who would make these payments; at times, Defendant failed to deny that he was personally liable for repayment, and at others he states that Harmony was the borrower, not him personally. (See Pl.'s Exhs. B-M.)

DISCUSSION

I. Standard of Review

A. Federal Rule of Civil Procedure 56: Summary Judgment

Summary judgment is only appropriate "if 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 judgment as a matter of law." FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed. 2d 265, 273 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202, 213 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). "In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134. The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). Once that burden is met, the non-moving party must "come forward with specific facts," LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998), to demonstrate that "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson, 477 U.S. at 258, 106 S.Ct. at 2515, 91 L.Ed. 2d at 218. "Mere conclusory allegations or denials will not suffice." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). And "unsupported allegations do not create a material issue of fact." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

B. Local Civil Rule 56.1: Statements of Material Facts on Motion for Summary Judgment

Pursuant to Local Rule 56.1, the party moving for summary judgment must provide "a separate, short[,] and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." LOCAL R. 56.1(a). Similarly, the non-moving party is required respond to "each numbered paragraph in the statement of the moving party, and if necessary, [include] additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried." LOCAL R. 56.1(b). "Each numbered paragraph . . . [provided] by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by . . . the opposing party." LOCAL R. 56.1(c). Additionally, "each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e)." LOCAL R. 56.1(d).

II. Breach of Contract

A. Required Showing

To recover for a breach of contract, Plaintiff must establish: (1) the existence of an agreement; (2) the plaintiff's adequate performance of that agreement; (3) a breach by the defendant; and (4) damages. See Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004); Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996); see also Log On Am., Inc. v. Promethean Asset Mgmt. LLC, 223 F. Supp. 2d 435, 451 (S.D.N.Y. 2001). Thus, the first question the Court must answer is whether there was a valid contract at all. A contract is formed when two or more parties consent to be bound to an agreement bargained between them. See, ...


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