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Kinojuz I.P. v. IRP International Inc.

United States District Court, E.D. New York

March 26, 2014

KINOJUZ I.P., a company under the laws of Kazakhstan, Plaintiff,
IRP INTERNATIONAL INC., a New York corporation, OULIAN DOUBININE, and IGOR ERLIKH, Defendants.


DORA L. IRIZARRY, District Judge.

Kinojuz I.P. ("Plaintiff" or "Kinojuz") brought this action against IRP International Inc. ("IRP"), Oulian Doubinine ("Doubinine"), and Igor Erlikh ("Erlikh") (collectively, "Defendants"), alleging, inter alia, that Defendants obtained money from the Plaintiff through fraud. Plaintiff moves for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure against Defendants IRP and Erlikh. Defendant Erlikh, proceeding pro se, opposes.[1] For the reasons set forth below, Plaintiff's motion is denied in its entirety.


Kinojuz is a movie production company organized under the laws of Kazakhstan. (Plaintiff's Statement of Material Facts Without Genuine Dispute ("Pl.'s 56.1 Stmnt") ¶ 3, Doc. Entry No. 102). Defendant Erlikh is the principal of IRP, a New York Corporation. (Pl.'s 56.1 Stmnt ¶¶ 1-2; Defendant's Response to Plaintiff's Statement ("Def.'s 56.1 Stmnt") ¶¶ 1-2, Docket Entry No. 104). In either 2006 or 2007, Mr. Erlikh traveled to Kazakhstan, where he met with Kinojuz's principal, Zhorabek Musabayev ("Musabayev"). (Pl.'s 56.1 Stmnt ¶ 4, Def.'s 56.1 Stmnt ¶ 4.) While Kinojuz claims that Mr. Erlikh "solicited" Mr. Musabayev regarding a deal to provide funding for one of Kinojuz's movies (the "Movie"), Mr. Erlikh claims that he and Mr. Musabayev discussed "numerous business proposals." ( Id. ; Musabayev Aff. ¶¶ 4-8, Doc. Entry No. 99; Erlikh Dep. at 91-95, Doc. Entry No. 99-2.)

Kinojuz claims that, although "a series of preliminary contracts" between IRP and Kinojuz were negotiated, all contracts were eventually "disavowed" by both companies. (Pl.'s 56.1 Stmnt ¶ 5; Def.'s 56.1 Stmnt ¶ 5.) Neither party has provided clear evidence as to the nature of any agreement between IRP and Kinojuz. On December 5, 2007, Mr. Musabayev transferred $199, 980 into IRP's bank account. (Pl.'s 56.1 Stmnt ¶¶ 6-7, Def.'s 56.1 Stmnt ¶¶ 6-7.) The parties disagree as to the purpose of the transaction. While Plaintiff asserts that the money was transferred to IRP as an advance for services related to production of the Movie, Defendant Erlikh contends that the money was made in payment both for "merchandise previously provided to the Plaintiff" and for expenses connected with the Movie. (Pl.'s 56.1 Stmnt ¶¶ 8-10; Def.'s 56.1 Stmnt ¶¶ 8-10.)

On January 20, 2011, Plaintiff commenced the instant action. (Compl., Doc. Entry No. 1.) Plaintiff's Amended Complaint includes twelve causes of action and seeks damages including, but not limited to, return of the money transferred to IRP. (Amd. Compl., Doc. Entry 180.) On February 13, 2012, a notation of default was entered against IRP. On May 30, 2013, Plaintiff filed the instant motion for partial summary judgment, seeking judgment in its favor against Defendants IRP and Erlikh with respect to causes of action three ("money had and received"), five ("fraud"), and eight ("unjust enrichment").

As a preliminary matter, Plaintiff's motion for summary judgment as to Defendant IRP is denied. Since a notation of default has been entered against IRP, the proper procedure for Plaintiff to pursue is to file a motion for default judgment against IRP, which Plaintiff should have filed two years ago. Accordingly, the Court considers Plaintiff's motion only as to Defendant Erlikh.


Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "In ruling on a summary judgment motion, the district court must resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment and determine whether there is a genuine dispute as to a material fact, raising an issue for trial." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotations omitted).

A fact is "material" within the meaning of Rule 56 when its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. To determine whether an issue is genuine, "[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam) and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)). "[T]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

However, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).

The moving party bears the burden of "informing the district court of the basis for its motion, and identifying those portions of [the record]... which it believes demonstrates the absence of a genuine issue of fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations omitted). Once the moving party has met its burden, "the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted). The nonmoving party must offer "concrete evidence from which a reasonable juror could return a verdict in [its] favor." Anderson, 477 U.S. at 256. The nonmoving party may not "rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or upon the mere allegations or denials of the nonmoving party's pleading." Ying Jing Gan v. City of New York, 996 F.2d 522, 532-33 (2d Cir. 1993) (citations and internal quotations omitted). "Summary judgment is appropriate only [w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.'" Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir. 2012) (quoting Matsushita, 475 U.S. at 587).

Plaintiff seeks summary judgment on its claims for money had and received, fraud, and unjust enrichment. (Plaintiff's Motion for Partial Summary Judgment Pursuant to Fed.R.Civ.P. 56 Against Defendants IRP International Inc. and Igor Erlikh ("Pl.'s Mot.") at 1, Doc. Entry No. 97.) "The essential elements in a claim for money had and received under New York law[2] are that (1) defendant received money belonging to plaintiff; (2) defendant benefitted from the receipt of money; and (3) under principles of equity and good conscience, defendant should not be permitted to keep the money." Marini v. Adamo, 2014 WL 465036, at *42 (E.D.N.Y. Feb. 6, 2014) (quoting Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, Nat. Ass'n, 731 F.2d 112, 125 (2d Cir. 1984)). Similarly, a claim for unjust enrichment requires the Plaintiff to show: "that (1) defendant was enriched, (2) at plaintiff's expense, and (3) equity and good conscience militate against permitting defendant to retain what plaintiff is seeking to recover." T.D. Bank, N.A. v. JP Morgan Chase Bank, N.A., 2010 WL 4038826, at *5 (E.D.N.Y. Oct. 14, 2010) (citing Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d Cir. 2004)). Thus, both causes of action turn on a single inquiry: whether Defendant Erlikh has benefited from property that is rightfully Plaintiff's such that equity and good conscience demand restoration of the disputed property to Plaintiff. Id. at *4.

To succeed on its claim against Mr. Erlikh for fraud, Plaintiff must prove: "(1) a misrepresentation or a material omission of material fact which was false and known by defendant to be false, (2) made for the purpose of inducing the plaintiff to rely on it, and (3) justifiably relied upon by the plaintiff, (4) who then suffered an injury as a result of such reliance." Fernbach, LLC v. Capital & Guarantee Inc., 2009 WL 2474691, at *6 ...

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