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William Brenner, Jacalyn Brenner v. Simon

August 20, 2012

WILLIAM BRENNER, JACALYN BRENNER PLAINTIFFS,
v.
SIMON BRENNER DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiffs William Brenner ("William") and Jacalyn Brenner ("Jacalyn") (collectively, "plaintiffs") commenced this diversity action against Simon Brenner ("Simon" or "defendant") asserting claims of breach of contract, unjust enrichment, promissory estoppel, and equitable estoppel. By Memorandum & Order dated September 22, 2011, the Court granted defendant's motion made pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) and dismissed the Complaint in its entirety. However, the Court afforded plaintiffs the opportunity to request leave to amend their pleading to cure the deficiencies noted in the Court's September 22, 2011 Memorandum & Order. Presently before the Court is plaintiffs' motion, made pursuant to Rule 15, to amend the Complaint. For the reasons set forth below, plaintiffs' motion is granted in part and denied in part.

BACKGROUND

The following facts are taken from the Proposed Amended Complaint, including the exhibits attached thereto,*fn1 and are presumed true for purposes of the instant motion.

William and Jacalyn are married and currently reside in Hackensack, New Jersey. Simon, who currently resides in Roslyn, New York, is William's uncle. Non-party Dean Brenner ("Dean") is Simon's son and William's cousin.

From the late 1970s until late 1997, William, Simon, and Dean were part owners of Delta Trading Corporation ("Delta"), a corporation located at 220 West 30th Street, New York, New York. By approximately November 1997, Simon no longer possessed an ownership interest in Delta. As of the beginning of 1998, Dean owned 72.5% of Delta and William owned the remaining 27.5%. Although Simon no longer was an owner of Delta, he continued serving as its President, "receiving compensation from the Company and remaining active in its business." (Proposed Am. Compl. ¶ 7.)

In December 2001, Delta began the process of seeking a loan from the United States Small Business Administration ("SBA") (the "SBA Loan"). Simon asked William if he and Jacalyn would "put up their personal residence," which was owned by Jacalyn and located in Old Bethpage, New York, as collateral for the SBA Loan. (Id. ¶ 8.) After plaintiffs discussed the matter amongst themselves, William informed Simon that they were not willing to do so. (Id. ¶ 9.)

In response, defendant "stated that he would personally take care of everything if need be and personally guarantee the SBA Loan and pay it off so as to avoid any harm whatsoever to William and Jacalyn Brenner." (Id. ¶ 10.) Plaintiffs assert that defendant's offer "was unconditional" and "was not subject to . . . any specific occurrence or event . . . ." (Id.) Plaintiffs accepted defendant's offer and, pursuant to this oral agreement between the parties (the "Agreement") and in reliance on defendant's promise, "a mortgage was executed on the Old Bethpage Home with respect to the SBA Loan." (Id. ¶ 11.)

On or about December 14, 2001, Simon, as President of Delta, along with William and Dean, executed a SBA Loan Note. Subsequently, Delta received proceeds from the SBA Loan in the amount of approximately $150,000. This money permitted Delta to continue operating its business.

In approximately June 2003, plaintiffs decided to refinance their Old Bethpage home. According to plaintiffs, "[a]t or around this time, Simon Brenner verbally reaffirmed the terms of the Agreement." (Id. ¶ 14.) Shortly thereafter, Simon sent William a letter dated June 9, 2003 (the "Letter"), which stated as follows:

I am writing to confirm our verbal discussion in which I told you that I would ensure that there would be no foreclosure on the second mortgage that you gave to the United States Small Business Administration in connection with a loan to Delta Trading Corp. (Number EIDL50313140-00). In this connection, in the event Delta Trading Corp. does not pay its obligation and there is an attempt on the part of the United States Small Business Administration to enforce its mortgage, then I will indemnify and hold you harmless from any possible action, including but not limited to paying the balance if that becomes necessary. (Id. ¶ 15, Ex. A.)

Plaintiffs allege that "[w]hile the Letter memorialized the facts of the Agreement, it unilaterally attempted to place conditions on Simon Brenner's unconditional obligation therein." (Id. ¶ 16.) Plaintiffs assert that this was the first time that Simon had attempted to place such conditions on his promise. (Id.) Plaintiffs did not respond and seem to assert that, by their silence, they indicated their non-approval of the proposed conditions on Simon's obligation to guarantee the SBA Loan, as articulated in the Letter. (Id.)

In or around mid-2004, Delta, heavily indebted and facing lawsuits, ceased operations. Thereafter, a new company, DTC Trading LLC ("DTC"), was formed. Dean was the sole owner of DTC. (Id. ¶ 20.) William did not acquire an ownership interest in DTC but served as an employee of DTC until 2009. Simon "was active in DTC," had "check writing authority" for DTC, and "continued receiving compensation from DTC." (Id. ¶¶ 18, 19.)

In early 2010, plaintiffs determined that they needed to sell their Old Bethpage home. In March 2010, Jacalyn entered into a contract of sale to sell the home. Prior to the closing, William informed the SBA that a different property would need to be substituted as security for the SBA Loan. At the direction of the SBA, William obtained certain documentation and requested that Dean (on behalf of Delta) complete certain necessary forms. Dean refused to either complete the forms, pay off the SBA Loan, or secure the SBA Loan with another property or asset. The SBA insisted upon payment of the SBA Loan payoff amount ($124,544.12) before the closing, and plaintiffs paid this money. On or about July 22, 2010, plaintiffs demanded in writing that Simon indemnify and hold them harmless in the amount of the payoff. Simon refused.

The original Complaint in this action, which was filed on October 22, 2010, asserted claims sounding in breach of contract, unjust enrichment, promissory estoppel, and equitable estoppel. By Memorandum & Order dated September 22, 2011, the Court dismissed the Complaint in its entirety upon defendant's Rule 12(b)(6) motion to dismiss. The Proposed Amended ...


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