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Golisano v. Turek

United States District Court, W.D. New York

June 4, 2015

B. THOMAS GOLISANO, Plaintiff,
v.
WALTER TUREK, Defendant. WALTER TUREK, Counter-Claimant,
v.
B. THOMAS GOLISANO, Counter-Defendant. WALTUR TUREK, Third Party Plaintiff,
v.
BLUETIE, INC. Third Party Defendant.

Glenn E. Pezzulo, Esq., Culley, Marks, Tanenbaum & Pezzulo, Rochester, NY. for Plaintiff/Counter-Defendant.

John G. Powers, Esq., Daniel B. Berman, Esq., Nina I. Brown, Esq., Hancock Estabrook, LLP, Syracuse, NY, for Defendant/Counter-Claimant/Third Party Defendant.

Carolyn G. Nussbaum, Esq., Kevin T. Saunders, Esq., Nixon Peabody LLP, Rochester, NY. for Third-Party Defendant.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

This case, removed from New York State Supreme Court on diversity jurisdiction, is before the undersigned on motion by third-party BlueTie, Inc. ("BlueTie") to dismiss the first cause of action in the Third-Party Complaint, filed on March 26, 2015, ECF No. 34. For the reasons stated below, BlueTie's application is granted.

BACKGROUND

Plaintiff B. Thomas Golisano ("Golisano") is suing Walter Turek ("Turek") to enforce Turek's guarantee of a loan. Turek brought a third-party complaint against BlueTie, Inc., on August 27, 2014, ECF No. 12, of which he alleges that Golisano is chairman of the board of directors. Turek alleges that he is entitled to indemnification from BlueTie for "any and all losses, claims, liabilities and expenses which may arise as a result of the fact that [he is a] director of [BlueTie]." Third-Party Compl. ΒΆ 14, Aug. 27, 2014, ECF No. 12. BlueTie, Inc., has moved to dismiss the first cause of action, which reads as follows:

FIRST CAUSE OF ACTION
(Indemnification)
11. Plaintiff's Complaint alleges that he is the assignee of JPMorgan Chase Bank, N.A., (the "Bank") of an Advised Line of Credit Note (the "Note") [CompI. Ex. "A"] made by BlueTie, as well as three Continuing Guarantees "given to the Bank by... [inter alia] Defendant" (the "Guaranty") [CompI. Ex "B"] claiming to have acquired his interest in the Note and Guaranty pursuant to a Loan Sale Agreement and Omnibus Assignment and Assumption Agreement (collectively, the "Assignment Documents") on March 29, 2014. [CompI. Exs. "D" and "E."]
12. Plaintiff alleges that the Note is due and has not been paid by BlueTie.
13. Plaintiff alleges that he has made a demand for payment of what Plaintiff alleges to be Defendant's "pro-rata portion" of BlueTie's obligation on the Note, in the amount of $780, 190.83, and alleges that he is also entitled to recover interest, reasonable costs, and attorney's fees.
14. Pursuant to Article IV of BlueTie's by-laws, Defendant is entitled to indemnification for "any and all losses, claims, liabities [sic] and expenses which may arise as a result of ...

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