United States District Court, S.D. New York
[Copyrighted Material Omitted]
Gregg J. Borri, Gregg J. Borri Law Offices, New York, NY, for Plaintiff.
Jonathan David Bachrach, Law Offices of Jonathan D. Bachrach, P.C, New York, NY, Defendant.
MEMORANDUM AND ORDER
J. PAUL OETKEN, District Judge.
Plaintiff Movado Group, Inc. (" Movado" ) brings this action against Defendants Caseiko Trading Company (" Caseiko" ) and Amir Ben-Nissan (" Nissan" ) to recover on a contract for the sale of watches. Plaintiff asserts its claims under New York contract law and the New York Uniform Commercial Code. N.Y. U.C.C. §§ 2-701-2-705. Movado has moved for summary judgment on all claims, seeking (1) summary judgment against Caseiko and Ben-Nissan in the amount of $281,341.52 and (2) a severing of Movado's claim for attorney's fees. For the reasons that follow, Movado's motion is granted, and the claim for attorney's fees and costs is severed for a separate determination.
A. Factual Background
This is a case centering on an agreement for the sale of watches and an unpaid debt. (Movado's Local Civil Rule 56.1 Statement, Dkt. No. 44 (" Movado 56.1" ), at ¶¶ 1-3.) In 2002 and 2009, Caseiko contracted with Movado to purchase ESQ Swiss and Movado brand watches. (Plaintiff's Memorandum in Support, Dkt. No. 43 (" Plaintiff's Mem." ), at 2.) In 2002 and 2009, to effectuate
this sale, Ben-Nissan— CEO and President of Caseiko— submitted a credit application and an agreement to Movado. ( See id.; Mihalio Declaration in Support, Dkt. No. 42 (" Mihalio Decl." ), at Exs. B, C.)
Ben-Nissan signed each credit application, and both contain a so-called " personal guarantee" clause, stating: " In consideration of the extension of credit to the Debtor each of the undersigned personally guarantees all debts incurred by the Debtor to the Company and agree that this shall be an absolute, unconditional and continuing guarantee." (Mihalio Decl. at Exs. B, C.)
Citing this language, Movado claims that Ben-Nissan is liable for Caseiko's unpaid debt, describing the clause as an " absolute" and " unconditional" guarantee. (Movado 56.1 at ¶ 10.) Defendants disagree, claiming that (1) Ben-Nissan entered into a new agreement with Movado that discharged his obligation, and alternatively, (2) any claims based on the 2002 guarantee are time-barred. (Defendants' Rule 56.1 Statement, Dkt. No. 49 (" Def.'s 56.1" ), at ¶ 5.)
Pursuant to these credit agreements, Caseiko undisputedly purchased the ESQ Swiss and Movado brand watches from Movado. Caseiko also accepted the watches. However, to date, neither Caseiko, nor Ben-Nissan, has paid the full purchase price of the watches. (Movado 56.1 at ¶ 3; Def.'s 56.1 at ¶ 1.) The fact of indebtedness is not disputed (Def.'s 56.1 at ¶ 1), and Ben-Nissan admitted, in writing, to owing Movado $363,526.88 on October 28, 2010 ( see Mihalio Decl. at Ex. I.)
Over the course of several years, Movado mailed monthly invoices to Caseiko, detailing the various charges on the account. ( See id. at Exs. D1-D4.) Defendants never objected to the monthly statements " itemizing and summarizing Caseiko's indebtedness" (Movado 56.1 at ¶ 8), " including the last account statement mailed to Caseiko dated December 31, 2011," which stated a total indebtedness of $290,381.32. ( Id.; Mihalio Decl. at Ex. L.) Defendants did object, however, to the interest shown on the stipulation dated October 29, 2010, with Ben-Nissan crossing out the $10,235.49 listed as interest in that stipulation. (Mihalio Decl. at Ex. J; see also Def.'s 56.1 at ¶ 3.)
This stipulation reflected an October 25, 2010 payment agreement between the parties, whereby Defendants agreed to pay the balance on their account in monthly installments from November 25, 2010 to May 25, 2012. (Mihalio Decl. at Ex. J.) In a letter dated November 9, 2010, Charles Post, the Senior Manager of Customer Financial services at Movado, clarified Movado's position that the ...