United States District Court, W.D. New York
DECISION & ORDER
W. PAYSON United States Magistrate Judge.
August 3, 2015, plaintiff Bank of America, N.A.
(“BOA”) commenced this action against defendants
Airborne, Inc. (“Airborne”) and John H. Dow
(“Dow”), alleging that they had defaulted on
several agreements with BOA. (Docket # 1). Currently before
the Court is BOA's unopposed motion for summary judgment.
(Docket # 31). For the following reasons, the motion is
following facts are undisputed. On May 21, 2014, Airborne entered
into a Commercial Card Account Agreement with FIA Card
Services, N.A. (“FIA”); BOA, as successor by
merger to FIA, has been assigned all rights and obligations
of FIA under the Commercial Card Account Agreement and is the
current holder of the Commercial Card Account Agreement.
(Docket # 31-2 at ¶¶ 1-3). Pursuant to that
agreement, BOA agreed to provide Airborne with a commercial
card account with a maximum credit limit of $1, 500, 000 and
to deliver a monthly billing statement to Airborne, which
Airborne agreed to pay in full on or before the due date.
(Id. at ¶¶ 4-5). The agreement also
permitted BOA to assess late fees, finance charges, and other
fees in the event Airborne failed to make a timely payment.
(Id. at ¶ 7). The agreement also authorized BOA
to suspend or terminate the agreement in the event Airborne
failed to make a payment and granted BOA a security interest
and contractual right to setoff in all deposits maintained by
Airborne with BOA in the event of default. (Id. at
October 16, 2014, BOA and Airborne entered into another
agreement, the LOC Loan Agreement, pursuant to which BOA
agreed to extend a $1, 250, 000 line of credit to Airborne
until June 30, 2015, at which time Airborne would be required
to repay the principal, interest, and any charges due.
(Id. at ¶ 10). The LOC Loan Agreement further
provided that in the event of default, BOA was entitled to
terminate the agreement, declare all sums outstanding under
the agreement to become immediately due and payable, charge
interest at the default rate of six percent over the existing
rate of interest on the loan, and take any other actions
available to BOA. (Id. at ¶¶ 11-13). The
agreement further provided that Airborne's failure to
make a payment or a default under any other agreement with
BOA would constitute a default of the LOC Loan Agreement.
(Id. at ¶ 11).
same date, October 16, 2014, Airborne executed the Airborne
Security Agreement, which granted BOA a first priority
blanket security interest on all assets of Airborne as
collateral security for prompt and complete payment and
performance of all of Airborne's debts, obligations, and
liabilities to BOA. (Id. at ¶¶ 14-15).
That same day, as additional collateral security for the
repayment of Airborne's obligations, Dow executed a
Continuing and Unconditional Guaranty in favor of BOA.
(Id. at ¶ 17). Pursuant to the Guaranty, Dow
unconditionally guaranteed the payment to or performance of
Airborne's obligations to BOA when due, including any
attorneys' fees and costs incurred by BOA in connection
with efforts to collect amounts owed under the various
defaulted under the Commercial Card Account Agreement by
repeatedly failing to pay the billing statement amounts in
full. (Id. at ¶ 20). This default also
constituted a default under the LOC Loan Agreement.
(Id. at ¶ 21). BOA notified Airborne of the
defaults through notices dated April 3, 2015, and May 20,
2015. (Id. at ¶ 22). Airborne also defaulted
under the LOC Loan Agreement by selling some of its assets to
Merchant Cash and Capital, LLC (“Merchant”) and
granting Merchant a security interest in certain of
Airborne's assets. (Id. at ¶ 23).
upon the defaults and the corresponding acceleration of
outstanding balances, on June 4, 2015, BOA demanded the
assembly and turnover of collateral by June 12, 2015.
(Id. at ¶ 24). Despite the written notices and
demand for payment, neither Airborne nor Dow paid the balance
due or turned over the collateral. (Id. at ¶
August 3, 2015, Airborne filed the instant Complaint,
asserting causes of action for breach of contract,
foreclosure, replevin, conversion, unjust enrichment, and
breach of guaranty. (Docket # 1). On April 29, 2016, BOA
filed the pending motion seeking partial summary judgment as
to defendants' liability on three of the causes of
action. Specifically, BOA seeks judgment against
Airborne on the first and second causes of action for breach
of contract based upon Airborne's breach of the
Commercial Card Account Agreement and the LOC Loan Agreement.
(Docket # 31-1 at 3). BOA also seeks summary judgment against
Dow on its eighth cause of action for breach of the Guaranty
Agreement. (Id.). Finally, BOA seeks an order
striking defendants' demand for a jury trial on the
grounds that the defendants waived their right to a jury
trial. (Id. at 10).
motion scheduling orders setting deadlines for a response to
the motion (Docket ## 32, 37), defendants have not opposed
the motion for summary judgment. Indeed, at oral argument on
December 20, 2016, counsel for defendants confirmed that
defendants were not opposed to judgment being entered on the
first, second, and eighth causes of action.
judgment is appropriate “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). In reaching this determination, the court
must assess whether there are any disputed material facts
and, in so doing, must resolve all ambiguities and draw all
reasonable inferences against the moving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986);
Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933
F.2d 162, 166-67 (2d Cir. 1991). A fact is
“material” only if it has some effect on the
outcome of the suit. Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248; Konikoff v. Prudential Ins.
Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000). A dispute
regarding a material fact is genuine “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248;
see also Konikoff v. Prudential Ins. Co. of Am., 234
F.3d at 97.
moving party bears the initial burden of demonstrating the
absence of a genuine issue of material fact, after which the
non-moving party must come forward with sufficient evidence
to support a jury verdict in its favor; the motion will not
be defeated based upon conjecture, surmise or the existence
of “metaphysical doubt” concerning the facts.
Bryantv. Maffucci, 923 F.2d 979, 982 (2d
Cir.) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith
RadioCorp., 475 U.S. 574, 586 (1986)),
cert. denied, 502 U.S. 849 (1991). The party seeking
to avoid summary judgment “must do more than make broad
factual allegations and invoke the appropriate statute. The
[party] must also show, by affidavits or as otherwise
provided in Rule 56 . . ., that ...