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Nxivm Corporation et al v. Joseph J. O'hara et al

June 22, 2012


The opinion of the court was delivered by: Gary L. Sharpe Chief Judge


I. Introduction

Plaintiffs*fn1 commenced this action alleging, among other things, that defendant Joseph J. O'Hara failed to repay certain loans as required by promissory notes that he executed in favor of plaintiffs Clare W. Bronfman and Sara R. Bronfman ("the Bronfmans"). (See Dkt. No. 80 ¶¶ 91-93; see generally Dkt. No. 1, Attach. 2.) Pending is the Bronfmans' three-branch motion seeking: (1) to renew a prior motion for relief under Fed. R. Civ. P. 60(b) from this court's September 27, 2007 judgment; (2) partial summary judgment on their claims that O'Hara failed to repay the loans as required by the promissory notes; and (3) judgment pursuant to Rule 54(b). (See Dkt. No. 118.) For the reasons that follow, the Bronfmans' motion is granted.

II. Background

A. Facts*fn2

In 2004, Clare and Sara Bronfman each loaned $1,000,000 to O'Hara. (See Pls.' Statement of Material Facts (SMF) ¶¶ 1-3, Dkt. No. 118, Attach. 2.) In exchange for the loans, O'Hara gave both of the

Bronfmans a promissory note and option to purchase certain real property. (See id. ¶ 5; Dkt. No. 118, Attach. 3 at 9-25.) The promissory notes, which were virtually identical, both provided for repayment of the loans with interest at five percent (5%) per annum on December 31, 2006. (See Dkt. No. 118, Attach. 3 at 9-15.) The notes also contained a forum selection clause mandating that any legal action pertaining to them be commenced in "New York State Supreme Court in Albany County, NY." (See id. at 10, 13.) Clare Bronfman's option agreement provided that, in exchange for her $1,000,000 loan, she could elect to purchase from O'Hara a parcel of property situated in the Town of New Baltimore, New York ("New Baltimore property") for $1,000,000. (See id. at 17-20.) In exchange for Sara Bronfman's $1,000,000 loan, O'Hara gave her an option to purchase property located in the City of Saratoga Springs ("Saratoga property") for $750,000. (See id. at 22-25.) Before the December 31, 2006 maturity date of the notes, the Bronfmans gave O'Hara notice of their intention to exercise their options. (See id. ¶¶ 27-28.) While the parties dispute why the subject properties were not transferred to the Bronfmans, it is clear that they were not. (See id. ¶ 28; Def.'s SMF ¶ 10, Dkt. No. 126.)

B. Procedural History

In September 2005, this litigation was commenced in the Supreme Court of the State of New York against O'Hara and co-defendants Douglas Rutnik and Denise F. Polit.*fn3 (See Dkt. No 1, Attach. 1.) As initially plead, the Complaint contained no claim regarding the promissory notes, which had not yet become due. (See id.) Defendants removed the action to the Southern District of New York, (see Dkt. No. 1), and that court granted a later motion by O'Hara and Polit seeking to transfer venue to this District. (See Dkt Nos. 3, 26.) Plaintiffs ultimately stipulated to the dismissal of Rutnik, (see Dkt. Nos. 45-46), and filed a Supplemental Complaint on January 26, 2007, which added a cause of action seeking recovery on the then-due promissory notes. (See Dkt. No. 80.) O'Hara and Polit joined issue on February 5, 2007. (See Dkt. No. 81.)

At some point, the parties began settlement discussions and, on August 23, 2007, they stipulated to a settlement in open court before Magistrate Judge Randolph F. Treece. (See Dkt. No. 106.) As pertinent here, the settlement required O'Hara, or an entity that he controlled, to quitclaim deed the New Baltimore and Saratoga properties to the Bronfmans subject to any existing liens. (See Dkt. No. 103 at 5.) O'Hara was further obligated to discharge all liens that existed on the properties, pay the Bronfman sisters $200,000, and execute warranty deeds upon discharge of any liens-all by November 30, 2007. (See id. at 5-6.) In the event that O'Hara was unable to discharge the liens or pay $200,000 by November 30, 2007, he had the one-time option of extending his deadline for performance to February 28, 2008, in which case he would be obligated to pay interest at the prime rate on the money owing to the Bronfmans.*fn4

(See id. at 6.) This court thereafter entered judgment dismissing the entire action by reason of settlement on September 27, 2007. (See Dkt. No. 104.)

Two months after judgment was entered, plaintiffs' counsel requested a conference with Judge Treece to determine whether the settlement would be vacated in light of a "misrepresentation" by O'Hara that suggested his inability to timely comply with the terms of the settlement agreement. (Dkt. No. 105.) Although the parties appeared for that conference, apparently no action was taken by the court.*fn5 Despite any misrepresentation O'Hara may have made regarding the encumbrances on the properties, however, his time to perform under the settlement agreement had not yet come to pass.

On April 4, 2008, plaintiffs' counsel advised the court that O'Hara failed to perform as required by the settlement, and another telephone conference was held to discuss the matter. (See Dkt. No. 107.) By text only order dated April 29, 2008, Judge Treece permitted the Bronfmans to file a motion to set aside the judgment, which was premised upon the settlement agreement.*fn6 On June 29, 2008, the Bronfmans and plaintiffs Barbara Bouchey and NXIVM Corporation filed such a motion seeking, among other things, to vacate this court's September 27, 2007 judgment and restore the Bronfmans' claims. (See Dkt. No. 113.) Before resolution of the motion, O'Hara informed the court that he had filed for bankruptcy and, thus, the motion was subject to the automatic stay provision of 11 U.S.C. § 362. (See Dkt. No. 114.) By text only order dated July 28, 2008, this court acknowledged the bankruptcy stay and removed the motion from the docket with leave to renew if and when the stay was lifted and further proceedings were necessary or desirable. The instant motion was filed by the Bronfmans on January 30, 2012. (See Dkt. No. 118.) O'Hara subsequently commenced an action on February 9, 2012 that names, among others, the Bronfmans, and William Savino and Bernard Schenkler-their counsel-as party defendants; that action is pending in this court as well. (See Dkt. No. 1, 1:12-cv-252.)

III. Standards of ...

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