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Dimare Homestead, Inc. and Dimare Ruskin, Inc v. the Alphas Company of New York

July 22, 2011


The opinion of the court was delivered by: P. Kevin Castel, District Judge


Plaintiffs DiMare Homestead, Inc. and DiMare Ruskin, Inc., (the "DiMare Companies" or "DiMare") filed the instant action against The Alphas Company of New York ("The Alphas"), Peter Alphas and John "Yanni" Alphas alleging that The Alphas failed to pay for perishable commodities that DiMare sold and delivered to The Alphas in violation of the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. § 499a et seq. Pursuant to Rule 56(a), Fed. R. Civ. P., plaintiffs now move for summary judgment. For the reasons set forth below, plaintiffs' motion is denied.


Plaintiffs the DiMare Companies are Florida corporations engaged in the business of buying and selling wholesale quantities of perishable agricultural commodities. (Compl. ¶¶ 3-4; Pl. 56.1 ¶ 1; Def. 56.1 Resp. ¶ 1.) Both are licensed dealers under PACA. (Id.) The Alphas is a purchaser of wholesale quantities of perishable agricultural commodities, primarily tomatoes, at the Hunts Point Terminal Market in the Bronx. (Compl. ¶ 5; John S. "Yanni" Alphas Aff. ¶ 3.) The Alphas is also a licensed dealer under PACA. (Pl. 56.1 ¶ 6; Def. 56.1 Resp. ¶ 6.) Defendants Peter Alphas and John "Yanni" Alphas are officers and shareholders of The Alphas. (Pl. 56.1 ¶ 7; Def. 56.1 Resp. ¶ 7.)

On July 27, 2009, DiMare filed suit against The Alphas, Peter Alphas and Yanni Alphas to enforce their rights under the trust provisions of PACA. (Docket # 1.) Plaintiffs seek to recover $164,159.00, the alleged balance due and owing on twenty-eight shipments of tomatoes sent to The Alphas between February 10, 2009 and May 13, 2009. (Pl. 56.1 ¶ 2.) Contemporaneous with the filing of the Complaint, plaintiffs filed an Order to Show Cause Why a Preliminary Injunction Should Not Issue and sought a Temporary Restraining Order. (Docket # 3.) This Court granted plaintiffs' Temporary Restraining Order barring The Alphas from dissipating any of its assets until further order of this Court or until plaintiffs have been paid the aggregate amount of $164,159.00. (Docket # 3.) On July 30, 2009, a preliminary injunction hearing was held. At the hearing, plaintiff called no witnesses; defendants called Yanni Alphas. In his testimony, Mr. Alphas acknowledged that The Alphas owed DiMare $50,353.00, but disputed all other sums due and explained the basis of the dispute. Finding Mr. Alphas' testimony credible and the basis for the dispute plausible, this Court continued the injunction against The Alphas, but reduced the aggregate amount to $50,353.00. (Docket # 14.)

Plaintiffs now move for summary judgment, alleging that there is no genuine issue of material fact that The Alphas and the individual Alphas owe DiMare the remaining $113,809.00 under PACA's statutory trust provisions. The plaintiffs also seek dismissal of defendants' counterclaim for breach of contract.


I. Summary Judgment Standard

Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, affidavits and other materials show "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Rule 56(a), Fed. R. Civ. P. It is the movant's initial burden to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).

In turn, to defeat a motion for summary judgment, the non-movant must raise a genuine issue of material fact. In raising a triable issue of fact, the non-movant carries only "a limited burden of production," but nevertheless "must 'demonstrate more than some metaphysical doubt as to the material facts,' and come forward with 'specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).

An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal quotations marks omitted) (citations omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In the absence of any disputed material fact, summary judgment is appropriate. See Rule 56(a), Fed. R. Civ. P.

Mere "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (citing Matsushita, 475 U.S. at 587); see also Anderson, 477 U.S. at 249-50 (summary judgment may be granted if the evidence is "merely colorable" or "not significantly probative"). An "opposing party's facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, spurious, irrelevant, gossamer inferences, conjectural, speculative, nor merely suspicions." Contemporary Mission, Inc. v. U.S. Postal Serv., 648 F.2d 97, 107 n. 14 (2d Cir. 1981) (internal quotation marks omitted).

II. PACA Trust

PACA was enacted by Congress in 1930 "to regulate the sale of perishable agricultural commodities." Endico Potatoes, Inc. v. CIT Grp./Factoring, Inc., 67 F.3d 1063, 1066 (2d Cir. 1995).*fn1 Specifically, PACA was intended to encourage fair trading practices, suppress unfair and fraudulent business practices in the marketing of perishable commodities and provide various remedies for breach of contractual obligations. See id. In 1984, the Act was amended "to further strengthen the protections provided to produce suppliers." A & J Produce Corp. v. Bronx Overall Econ. Dev. Corp., 542 F.3d 54, 57 (2d Cir. 2008). Congress added section 499e(c) to PACA, "which impresses a trust in favor of the sellers on the inventories of commodities, the products derived therefrom, and the proceeds of sale on such commodities and products." Endico, 67 F.3d at 1067 (citing H.R. REP. NO. 98-543, at 4 (1983), reprinted in 1984 ...

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