The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:
This opinion and order addresses (1) the motion for partial summary judgment of plaintiff VW Credit, Inc. ("VCI") as to liability on its first cause of action against defendants John Koeppel, Gzregorz Samborski, and Julian Salim (collectively, "defendants"), and (2) the cross-motion for partial summary judgment of defendant Koeppel on his first cross-claim against defendants Samborski and Salim. For the reasons that follow, VCI's partial motion for summary judgment is granted and Koeppel's partial motion for summary judgment is denied.
I. Background and Undisputed Facts*fn1
Defendant Big Apple Volkswagen, LLC ("Big Apple"), not a party to these motions, is a car dealership in the Bronx, New York. VCI, a Delaware corporation authorized to do business in the state of New York, loaned Big Apple money for its inventory of motor vehicles and provided a working capital line of credit, which Big Apple promised to pay back, as embodied in two promissory notes. On June 12, 2006, Big Apple executed one promissory note, in the amount of $3,347,500, and a master security agreement (collectively, "Wholesale Loan Agreement"). Under the terms of the Wholesale Loan Agreement, Big Apple agreed, inter alia, to remit to VCI the portion of each vehicle sale or lease which represented the monetary amount supplied by VCI to Big Apple under the loan. Big Apple also agreed to repay VCI the sum of $3,347,500, or such lesser sum as might be outstanding under the note, on demand, with interest. On March 19, 2007, Big Apple executed a second promissory note, in the amount of $250,000, and a master security agreement (collectively, "Capital Loan Agreement"). Under the terms of the Capital Loan Agreement, Big Apple agreed to repay the sum of $250,000, plus interest, at a schedule specified therein. Under both the Wholesale Loan Agreement and the Capital Loan Agreement (collectively, "Loan Agreements"), Big Apple granted to VCI a security interest in Big Apple's inventory of vehicles, chattels, and proceeds (collectively, "Collateral"). The Wholesale Loan Agreement and the Capital Loan Agreement are cross-defaulted, meaning that a default under one agreement constitutes a default under the other.
On June 12, 2006, defendant Koeppel signed a continuing guaranty, under which he guaranteed all of Big Apple's obligations to VCI. The guarantee makes Koeppel a primary guarantor under both Loan Agreements. Defendant Samborski signed a similar document on October 19, 2008, and defendant Salim on October 29, 2008. As a result of these guarantees (collectively, the "Guaranty Agreements"), Samborski and Salim are also primary guarantors under the Wholesale Loan Agreement and the Capital Loan Agreement.
Big Apple sold 78 vehicles from its inventory, but did not remit payment, as required under the Wholesale Loan Agreement, to VCI, in the amount of $1,237,615.86. In response to Big Apple's failure to remit payment for these vehicles sold, VCI accelerated payment of all amounts due under the Wholesale Loan Agreement and the Capital Loan Agreement. By letter dated March 17, 2011, VCI informed guarantor defendants Koeppel, Samborski, and Salim of this acceleration. As of that date, the accelerated amount immediately due and payable to VCI from Big Apple was $3,888,059.84 under the Wholesale Loan Agreement and $54,263.45 under the Capital Loan Agreement.
On March 21, 2011, VCI filed its complaint in this action, alleging claims for breach of contract and breach of guarantees, as well as a claim for replevin of the Collateral. On April 1, 2011, the Court stayed the case for 90 days to monitor defendant Big Apple's bankruptcy proceeding. On July 1, 2011, defendants Samborski and Salim filed an answer; on July 8, 2011, defendant Koeppel filed an answer and cross-claims against Samborski and Salim. On July 11, 2011, Samborski and Salim answered the cross-claims. This case remains stayed against defendant Big Apple, which is the subject of an ongoing bankruptcy proceeding.
On August 2, 2011, VCI filed this motion for summary judgment on liability as to its breach of contract claim only, against defendants Koeppel, Samborski, and Salim. On November 8, 2011, Koeppel filed a timely opposition and cross-motion for summary judgment against his co-defendants Samborski and Salim. Samborski and Salim did not oppose or otherwise respond to either motion for summary judgment.
II. Applicable Legal Standards
A party moving for summary judgment has the burden of establishing that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a) & (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002). Because summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, the moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts "in the light most favorable" to the non-moving party. Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010).
Once the moving party discharges its burden of proof under Rule 56(c), the party opposing summary judgment can defeat the motion for summary judgment "only by coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to establish the existence of [an] element at trial." Spinelli v. City of New York, 579 F.3d 160, 166-67 (2d Cir. 2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23; Fed. R. Civ. P. 56(c)) (internal quotation marks and additional citations omitted). Rule 56(e) "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading." Anderson, 477 U.S. at 256. Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247 (emphasis in original). Rather, enough evidence must favor the non-moving party's case such that a jury could return a verdict in its favor. Id. at 248.
A. VCI's Motion for Summary Judgment as to Koeppel, Samborski, and Salim For the reasons set out below, there is no genuine dispute of material fact as to defendants' breach of the Loan Agreements, and as to defendants' liability to VCI under those Loan Agreements, by way of the Guaranty Agreements. Summary judgment in favor of VCI as to its breach of contract claims is, therefore, appropriate.
Under New York law, the elements of a breach of contract claim are "'the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages.'" Russo v. Estee Lauder Corp., No. 08-cv-3965, 2012 WL 694842, at *19 (E.D.N.Y. Mar. 1, 2012) (quoting Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426 (N.Y. App. Div. 2010)). Under New York law, "'the Court must look first to the parties' written agreement to determine the parties' intent and limit its inquiry to the words of the agreement itself if the agreement sets forth the parties' intent clearly and unambiguously.'" Russo, 2012 WL 694842, at *19 (quoting Sterling Drug, Inc. v. Bayer AG, 792 F. Supp. 1357, 1365-66 (S.D.N.Y. 1992)). ...