United States District Court, E.D. New York
Kreinces & Rosenberg, P.C. Attorneys for the Plaintiff,
By: Leonard Kreinces, Esq. Howard Rosenberg, Esq., Of Counsel
Shell Law Firm Attorneys for the Defendants, By: Martin A.
Shell, Esq., Of Counsel SPATT, District Judge:
ORDER DECISION & ORDER
D. SPATT United States District Judge
case, the Plaintiff John the Greek Co., Inc. (the
“Plainitff”) alleges that the Defendant Eaternity
LLC d/b/a Local Thyme (“Eaternity”) and its
principal, the individual Defendant Stefan Hilderbrandt
(“Hilderbrandt”), failed to pay for certain
wholesale quantities of produce, in violation of the
Perishable Agricultural Commodities Act (“PACA”),
7 U.S.C. § 499a et seq.
before the Court is a motion by the Plaintiff for summary
judgment under Federal Rule of Civil Procedure (“Fed.
R. Civ. P.”) 56.
reasons that follow, the Plaintiff's motion is granted in
part and denied in part.
Plaintiff is a resident corporation with a principal place of
business in Port Washington, New York.
July 17, 2014 and March 6, 2015, the Plaintiff sold to the
corporate Defendant wholesale quantities of perishable
agricultural commodities in the total amount of $73, 643.47.
However, to date, Eaternity has not paid for these goods.
those facts, the Plaintiff seeks to enforce the provisions of
PACA in order to recover from the Defendants the unpaid sum,
together with statutory interest and attorneys' fees.
the reason for Eaternity's non-payment is the fact that
it is currently in financial straits and on the verge of
the Plaintiff contends that the individual Defendant
Hilderbrandt is sufficiently connected with Eaternity to
render him personally liable for the amounts owed. In this
regard, the Plaintiff asserts that Hilderbrandt is the chief
executive officer, director, and shareholder of the corporate
Defendant. In this capacity, the Plaintiff asserts that
Hilderbrandt signs checks on behalf of Eaternity and
determines which of the company's creditors to pay. The
Plaintiff asserts that Hilderbrandt is the sole person
responsible for determining the conduct of the business and
payment to creditors.
support of its motion, the Plaintiff submits a document
entitled “Movant's Statement of Material Facts and
Non-Movants' Counterstatement, ” dated June 15,
2016 (the “June 2016 Counterstatement”), in which
the Defendants concede some of these facts.
in opposition to the present motion, the Defendants submit a
different document, entitled “Defendants'
Counterstatement of Material Facts, ” which is dated
October 6, 2016 (the “October 2016
Counterstatement”), and which ...