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Nickel v. Brenton, LLC

United States District Court, N.D. New York

March 11, 2015

PETER A. NICKEL and KINEMATIC TECHNOLOGIES, INC., Plaintiffs,
v.
BRENTON, LLC and PRO MACH GROUP, INC., Defendants

Page 39

For Plaintiffs: MICHAEL T. BROCKBANK, ESQ., OF COUNSEL, OFFICE OF MICHAEL T. BROCKBANK, Schenectady, New York.

For Defendants: BARRY M. KAZAN, ESQ., OF COUNSEL, THOMPSON, HINE LAW FIRM, New York, New York.

For Defendants: ROBERT P. JOHNSON, ESQ., OF COUNSEL, THOMPSON, HINE LAW FIRM, Cincinnati, OH.

Page 40

MEMORANDUM-DECISION AND ORDER

Mae A. D'Agostino, United States District Judge.

I. INTRODUCTION

On May 28, 2013, Plaintiffs commenced this action in New York State Supreme Court, in Schenectady County. See Dkt. No. 14-5. In the complaint, Plaintiffs asserts a claim of breach of contract based on Defendants' failure to pay Plaintiffs a commission due on the Chobani Project. See id. In the complaint, Plaintiffs seek an award in the amount of $1,050,000.00, as a proper commission from Defendants. See id. On September 16, 2013, Defendants removed this action to this Court based on complete diversity of citizenship after Defendant Jordan Company, LP was removed from the action. See Dkt. No. 1. Defendants' filed their answer to Plaintiffs' original complaint with the Notice of Removal. See id.

Page 41

Currently before the Court is Defendants' motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Dkt. No. 14.

II. BACKGROUND

Plaintiff Kinematic Technologies, Inc. (" Kinematic" ), is a New York corporation operating in the business of " systems integrat[ion], wholesale distribut[ion], and [is an] independent agent for material handling equipment, and packaging equipment, and/or systems using that equipment." See Dkt. No. 14-4 at 9. Peter A. Nickel, the second party bringing this action, founded Kinematic on January 14, 1999, and has since maintained the position as the sole active co-owner and employee, with his wife acting as a silent partner. See id. at 10.

Defendant Brenton, LLC (" Brenton" ), is a limited liability company " engaged in the business of manufacture and sale of equipment used in end of line packaging line applications," manufacturing palletizers, case packers, pallet elevators and stretch wrappers. See Dkt. No. 14-2 at ¶ 1. In Defendants' statement of material facts in support of the motion for summary judgment, Defendants contend that Brenton is a subsidiary of Pro Mach Inc., and that the named Defendant in the complaint, Pro Mach Group, Inc., " is neither a parent nor [a] subsidiary of Brenton." See id. at ¶ 2.

On January 18, 2008, Plaintiff Kinematic and Defendant Brenton entered into a written contract, titled " Channel Partner Agreement" (" Agreement" ), which expressly stated that it would last for a term of one year, and would be interpreted in accordance with New York law. See Dkt. No. 14-2 at ¶ 5. The parties stipulate that under the Agreement, Kinematic was to act as a broker for Brenton on a nonexclusive basis. See id. Under the terms of the Agreement, Brenton was to pay Kinematic specified percentages of commissions earned by Brenton depending on what equipment or systems of equipment Kinematic was able to sell on behalf of Brenton. See Dkt. No. 14-5 at 10. If for example, under the terms of the Agreement, due to Kinematic's representation of Brenton, Brenton successfully sold equipment such as Currie[1] Palletizers, Currie Case Elevators or Pallet Dispensers to a customer that had been presented to Brenton by Kinematic, Brenton was obligated to pay Kinematic a commission of ten (10) percent of the total sale price Brenton earned from the sale of that equipment. See id. During the one year term of the Agreement, Kinematic successfully represented and sold Brenton products on at least four separate deals with the Beechnut Corporation. See Dkt. No. 14-4 at 40.

Both parties agree that after the expiration of the one year term of the Agreement, Plaintiff Kinematic continued to represent and conduct business on behalf Brenton. See Dkt. No. 15-1 at ¶ 11. Following the expiration of the Agreement, Kinematic presented Brenton with another potential deal from the baby food manufacturer Beechnut, to whom Kinematic successfully submitted a bid for projects involving Brenton palletizers and conveyers. See id.; see also Dkt. No. 14-2 at ¶ 11. Although this sale was successfully completed, Brenton paid commissions to Kinematic in accordance with a commission schedule different from the commission schedule that had been set out in the January 2008 Agreement. See id.

Page 42

In June, 2011, Peter Nickel as owner of Kinematic, contacted Dan Johnson and Jim Horton, who were both palletizing engineers at Brenton at the time, after having received a request for a proposal from Agro Farm, later known as Chobani, to be submitted by August 15, 2011. See id. at ¶ 13. There is dispute between the parties as to what the original request from Chobani required, i.e., whether Chobani was interested in only a robotic or conventional palletizing system or whether conveyors were also expected to be included in the quote. See id.; see also Dkt. No. 15-1 at ¶ 13. Before submission of the bid, Nickel and a Brenton sales manager, Rob Robinson, met with Chobani representatives in July, 2011, in order to discuss the requirements for the expansion of its upstate New York plant. See Dkt. No. 14-2 at ¶ ¶ 13, 15. Brenton submitted a preliminary firm quote [2] to Chobani, with Kinematic as its sales representative, on August 15, 2011, for " 14 robotic palletizing cells and related equipment" with an estimated lead time for the completion of the project being 20-26 weeks from the day that Brenton receives a purchase order from Chobani. See id. at ¶ 16; see also Dkt. No. 14-5 at 28. There is a dispute between the parties as to whether this initial bid that was submitted by Brenton was rejected by Chobani. See id. at ¶ 17; see also Dkt. No. 15-1 at ¶ 17. Defendants contend in their motion for summary judgment that Chobani did it fact reject the original bid that Brenton and Kinematic submitted to Chobani, and that ultimately Brenton did not succeed in selling Chobani the robotic or conventional palletizers. See Dkt. No. 14-2 at ¶ 17. Plaintiffs rebut this allegation in their response by stating that the bid was not rejected by Chobani, but rather that Chobani wished to make " continual alterations to the plan for the packaging building." See Dkt. No. 15-1 at ¶ 17. Ultimately, the parties do agree that Brenton was unable to successfully obtain a purchase order from Chobani in the Fall of 2011. See Dkt. No. 14-2 at ¶ 18.

Defendants contend that after Chobani's " rejection" of the August 15, 2011 bid, Plaintiffs' involvement in the preparation of a subsequent bid to Chobani terminated. See id. at ¶ 19. However, Plaintiffs dispute this alleged fact, and posit instead that Nickel, as the owner of Kinematic, remained involved in the subsequent bid that Brenton submitted to Chobani in early February, 2012. See Dkt. No. 15-1 at ¶ 19. Not only do the parties disagree on the similarities that did or did not exist between the two bids that were submitted by Brenton to Chobani,[3] but Defendants argue that the only reason for Nickel's continued involvement with Chobani was for the purpose of hiring a subcontractor for the installation and wiring component of the job.[4] See Dkt. No. 14-2 at ¶ 21. Kinematic submitted a bid on behalf of the subcontractor AEI for the installation and wiring work for the Chobani project and Kinematic was paid a commission by AEI.

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See Dkt. No. 14-2 at ¶ 22. Plaintiffs contend that the only reason for the interaction and business between Kinematic and the subcontractor AEI was due to the direction by Brenton. See Dkt. No. 15-1 at ¶ 22.

In early March, 2012, after negotiations between Brenton's president, Barry Heiser, and Marc Abjean of Chobani, an interim purchase order was submitted to Brenton by Chobani. See Dkt. No. 14-2 at ¶ 23; see also Dkt. No. 15-9. However, shortly thereafter, on March 22, 2012, Chobani placed the project on hold to allow for additional scope changes. See Dkt. No. 14-2 at ¶ 24; see also Dkt. No. 14-5. Plaintiffs contend that the various changes to the project by Chobani reflect the fact that this was an evolving project and was not simply based off of one singular bid. See Dkt. No. 15-1 at ¶ 25. However, Plaintiffs contend that assuming Defendants argument that the Chobani project was dictated by change orders, Defendants had paid Plaintiffs for change orders in past projects and this project was no different. See id. at ¶ 26.

According to Plaintiffs, on June 24, 2012, in a telephone call made to Peter Nickel from Brenton's Troy Snader, Nickel was presented with a $100,000 settlement for the work Brenton believed Kinematic contributed to the Chobani project. See id. at ¶ 28; see also Dkt. No. 14-4 at 167-68. Defendants contend in their statement of material facts that Nickels was told that he was only going to be offered $100,000 as a finders fee for the Chobani project and that he would not be paid a commission because " Kinematic did not sell the work purchased by Chobani." See Dkt. No. 14-2 at ¶ 28; see also Dkt. No. 15-1 at ¶ 28. Subsequently, in January, 2013, Kinematic accepted a $25,000 check made out to it by Brenton. See Dkt. No. 15-1 at ¶ 30. Plaintiffs contend that they accepted this payment as part of the commission due from the Chobani project; however, Defendant's contend that this payment was made to Plaintiffs as part of the $100,000 finders fee, and that Plaintiffs refused to accept the final $75,000 of the payment. See Dkt. No. 15-1 at ¶ 30; see also Dkt. No. 14-2 at ¶ 30. Plaintiffs continue to hold the $25,000 payment in their attorney's escrow account. See Dkt. No. 15-1 at ¶ 30.

III. DISCUSSION

A. Standard of Review

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court " cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the

Page 44

moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment " would derogate the truth-finding ...


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