United States District Court, S.D. New York
SIGURD A. SORENSON, Plaintiff,
STANLEY WOLFSON, Defendant.
MEMORANDUM OPINION ORDER
JOHN G. KOELTL, District Judge.
This action arises from a failed real estate transaction. The plaintiff, Sigurd Sorenson, is an attorney proceeding pro se. Sorenson brought this action following the dismissal and partial dismissal of his related state court actions. The only claims that remain in this case are Sorenson's claims for copyright infringement and fraud, and a counterclaim plaintiff's claim for attorneys' fees and costs against Sorenson. The only remaining defendant is Stanley Wolfson. Sorenson now moves for summary judgment dismissing the counterclaim for attorneys' fees and costs and dismissing two of Wolfson's defenses to the remaining fraud claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. Sorenson also seeks leave to amend his Second Amended Complaint.
The standard for granting summary judgment is well established. "The [C]ourt shall grant summary judgment if 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); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs. L.P. , 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo , 22 F.3d at 1224.
The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex , 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587-88 (1986). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp. , 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York , 996 F.2d 522, 532 (2d Cir. 1993).
The following facts are undisputed unless otherwise indicated. Defendant Stanley Wolfson is a real estate developer and the owner of Bridge Capital Corporation ("Bridge"), the original sponsor of a residential condominium development at 257 West 117th Street in New York City. In or about January 2005, Sorenson executed three purchase agreements (the "Purchase Agreements") with Bridge to purchase three units in the condominium development for approximately $3.9 million.
The Purchase Agreements included various termination clauses. Section 37(c) to each agreement, (the "Overages Provision"), provided that either party could terminate the agreement, without penalty, if the parties could not reach an agreement with respect to apportioning liability for overages incurred as a result of construction of the relevant units. Section 49(i) to two of the Purchase Agreements, (the "Amendment Acceptance Provision"), provided that either party could terminate the agreement if the New York State Attorney General rejected a proposed amendment to the plan that offered units in the development to the public for sale (the "Plan Amendment").
Pursuant to the Amendment Acceptance Provision, Bridge submitted the Plan Amendment to the New York State Attorney General's Office (the "NYAGO") on February 11, 2005. (Sorenson Decl., Ex. 22 at 1.) In a memorandum dated March 14, 2005, the NYAGO requested that Bridge submit additional information about the Plan Amendment and make certain corrections to the Plan Amendment. (Sorenson Decl., Ex. 41.) Bridge did not respond to the NYAGO's requests. (Pl.'s Rule 56.1 Stmt. at ¶ 23; Def.'s Resp. to Pl.'s Rule 56.1 Stmt. at ¶ 23.) Instead, in a letter faxed on March 15, 2005, Bridge informed Sorenson that the NYAGO had rejected the Plan Amendment. (Sorenson Decl., Ex. 24 at 4.) Bridge invoked the Amendment Acceptance Provision shortly thereafter.
As required by the Purchase Agreements, Sorenson provided Bridge with custom architectural plans for purposes of constructing his units. (Sorenson Decl., Ex. 30 at 86-87.) On March 8, 2005, Bridge informed Sorenson that it had reviewed the plans, and proposed that Sorenson contribute an additional $729, 900 for overages expected to result from construction of his units. (Sorenson Decl., Ex. 26 at 2.) On March 15, 2005, Sorenson replied to Bridge's proposal by purportedly offering to withdraw his custom plans and have his units built to the standard specifications contained in Bridge's offering plan. (Sorenson Decl., Ex. 27.) Bridge did not respond to Sorenson's alleged offer and instead terminated the Purchase Agreements pursuant to the Overages Provision. (Sorenson Decl., Ex. 25 at 2-3.)
The parties dispute when Bridge invoked the termination provisions. Sorenson maintains that Bridge invoked the termination provisions in correspondence that, while dated March 18, 2005, was not sent until March 21, 2005. (Sorenson Decl., Ex. 25 at 1-2.) Wolfson maintains that, in addition to sending a termination letter by fax on March 21, 2005, Bridge sent a termination letter by certified mail on March 18, 2005. (Sorenson Decl., Ex. 25 at 2.)
In April 2005, Sorenson brought suit against Bridge and Wolfson in New York State Supreme Court, New York County, asserting claims for breach of contract, specific performance, and other causes of action arising from the termination of the Purchase Agreements. In June 2005, Bridge sold the condominium development to a company called 257/117 Realty ("257 Realty"). Sorenson, believing that Wolfson had conveyed the development in order to evade a judgment against him, brought a second state court action in which he alleged fraudulent conveyance of the development against Bridge, Wolfson, and 257 Realty.
By Order dated January 3, 2008, Justice Charles Ramos dismissed the plaintiff's complaint in his initial state court action (the "contract action"). By Order dated March 24, 2008, Justice Ramos dismissed the plaintiff's complaint in his fraudulent conveyance action. Sorenson appealed both orders. (Sorenson Decl., Exs. 6-7.) While Sorenson's appeals were pending, Bridge moved pursuant to a fee-shifting provision in the Purchase Agreements to recover the attorneys' fees and costs that it incurred defending the contract and fraudulent conveyance suits. (Sorenson Decl., Ex. 11 at 56-58.) On February 20, 2008, Justice Ramos granted Bridge's motion, and ordered that the parties submit proposed orders instructing the referee how to proceed with respect to calculating the relevant fees and costs. (Sorenson Decl., Ex. 11 at 59-60.)
On June 10, 2008, the Appellate Division affirmed the dismissal of Sorenson's complaint in the contract action, except with respect to Sorenson's claims for breach of the covenant of good faith and fair dealing, and for specific performance. Sorenson v. Bridge Capital Corp. , 861 N.Y.S.2d 280, 282-83 (App. Div. 2008). On May 28, 2009, the Appellate Division affirmed the dismissal of Sorenson's complaint in the fraudulent conveyance action and affirmed the imposition of attorneys' fees and costs in that action in the amount of $16, 386, as well as sanctions in the amount of $2, 500 each against Sorenson and his attorney. Sorenson v. 257/117 Realty, LLC , 881 N.Y.S.2d 43, 44 (App. Div. 2009).
The parties also litigated a third suit in New York State court in which Bridge alleged libel against Sorenson and Sorenson counterclaimed against Bridge and third-party 257 Realty, alleging that the libel suit was a retaliatory strategic lawsuit against public participation prohibited under the New York Civil Rights Law. Bridge Capital Corp. v. Ernst , 877 N.Y.S.2d 51 (App. Div. 2009). Sorenson's counterclaim was dismissed. Ernst , 877 N.Y.S.2d at 52-53.
Following the Appellate Division's decisions with respect to the contract and fraudulent conveyance actions, Sorenson initiated this action. On February 14, 2012, this Court dismissed or found withdrawn Sorenson's RICO claims, fraudulent conveyance claim, unfair competition claim, criminal copyright claim, and, to the extent predicated on activity that occurred on or before June 10, 2007, Sorenson's civil copyright claim. Sorenson then settled his remaining claims against all defendants except Wolfson. (See Stipulation of Partial Dismissal, ECF No. 83.) On March 14, 2014, the Court found that Sorenson had withdrawn his claim under New York General Business Law Section 349, and denied Wolfson's motion for summary judgment on Sorenson's remaining claims. (See Tr. of Oral Arg. on Mar. 14, 2014 at 19, 34.)
In settling the claims against it, Defendant 257 Realty stipulated that it be permitted to press its counterclaim for the attorneys' fees and costs that it and Bridge incurred in defending Sorenson's state and federal court actions. (See Stipulation of Partial Dismissal, ECF No. 83; Am. Countercl. ¶ 132.) In its counterclaim, 257 Realty alleges that it is entitled to enforce a fee-shifting provision in the Purchase Agreements as successor-in-interest to Bridge, which signed the Purchase Agreements. (Am. Countercl. ¶ 133.) 257 Realty seeks $861, 297.50 in attorneys' fees and costs ...