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JB Aviation, LLC v. R Aviation Charter Services, LLC

United States District Court, E.D. New York

September 5, 2017


          BARROWS & TEHRANI PLLC Attorney for Plaintiffs By: Michael C. Barrows, Esq.

          THE LAW OFFICES OF ANTHONY A. CAPETOLA Attorney for Plaintiffs By: Anthony A. Capetola, Esq.

          SCHLACTER & ASSOCIATES Attorneys for Defendants By: Jed R. Schlacter, Esq. Bret I. Herman, Esq.



         Plaintiffs JB Aviation ("JBA") and its member Jefferson Bramble ("Bramble") (collectively "Plaintiffs") commenced this action against R Aviation Charter Services, LLC ("RACS") and John Rosatti ("Defendant"), the manager of RACS, (collectively, the "Parties"), for breach of contract, unjust enrichment, and misrepresentation claims related to the procurement of an aircraft. On November 12, 2015, the Court dismissed all claims against RACS for lack of personal jurisdiction. JB Aviation v. R Aviation Charter Services, LLC, 143 F.Supp.3d 37, 49 (E.D.N.Y. 2015). The Court also dismissed all claims against Rosatti on the same basis, except the claims for (i) breach of a brokerage agreement and (ii) unjust enrichment. Id. at 47.

         Presently before the Court is Defendant's motion for summary judgment pursuant to Rule of Civil Procedure ("Rule") 56, seeking dismissal of the claim regarding breach of the alleged oral brokerage agreement. Defendant largely neglects to address the remaining claim for unjust enrichment, however, this is immaterial because Defendant's motion is denied for the reasons stated below.


         Pursuant to Local Civil Rule 56.1, the moving party is required to submit "a separate, short and concise statement, in numbered paragraphs, of the material facts as to which there is no genuine issue to be tried, " together with "citation[s] to evidence which would be admissible, set forth as required by Fed .R. Civ. P. 56(c)." See Local R. 56.1(a), (d). Defendant largely satisfied this obligation, although his Rule 56.1 statement is notably missing certain citations. In response, Plaintiffs were required to provide "a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party" followed by citations to admissible record evidence. See Local R. 56.1(b), (d). In breach of their obligation, Plaintiffs failed to submit a responsive statement.

         Local Rule 56.1 subsection (c) instructs that each paragraph in the moving party's statement of material facts will be deemed admitted for purposes of the summary judgment motion "unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." Local R. 56.1(c); see also Gianulluo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003). However, "[t]he local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001) abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167(2009).

         While the Court has discretion "to overlook a party's failure to comply with local court rules, " id. at 73, the Court declines to wholly ignore Plaintiffs' failure to submit a response to Defendant's Rule 56.1 statement. Plaintiffs contest certain facts in their opposition papers, however they do not properly support these assertions with citation to material in the record in accordance with Federal Rule of Civil Procedure 56(c). Accordingly, all material facts set forth in Defendant's Rule 56.1 statement are deemed admitted to the extent that they are adequately supported with record evidence. Given that Defendant does not assert certain dispositive facts in his Rule 56.1 statement, such as the existence or lack thereof of an oral brokerage agreement, Plaintiffs' oversight is not entirely detrimental to their position.

         Having addressed the above threshold issues, attention will be directed to the purported absence of material facts which serve as the basis for Defendant's motion for summary judgment.


         The following facts are undisputed, unless otherwise stated.

         In mid-2010, Plaintiff Bramble and Defendant met and discussed Defendant's intention to purchase an aircraft and Plaintiff Bramble's experience in the aviation industry. (Bramble Depo. At 89.) Plaintiffs allege that at this meeting, the Parties entered into: (1) an oral brokerage agreement by and through which Defendant would pay Plaintiff 1.5% of the purchase price of an aircraft, and (2) a consultancy arrangement regarding reviewing the condition of any of the planes being considered for acquisition. (Bramble Depo. at 89-90.) Defendant contends that there was no such oral brokerage agreement. (Rosatti Declaration at ¶ 12.) Both parties agree that there was no written brokerage agreement, nor any draft or proposal of a written brokerage agreement. (Def s 56.1 at ¶¶ 1-3.)

         Defendant claims that he was first shown the aircraft at issue-Gulfstream IV, Serial Number 1066 ("Aircraft 1066")-in 2010 at Aero Toy Store, LLC, by the store owner Mayer Shirazipour ("Shirazipour"). (Rosatti Decl. at ¶ 4.) Plaintiff Bramble, on the other hand, contends that he was the first person to show Aircraft 1066 to Defendant, after he independently identified the plane in January 2011. (Bramble Decl. at ¶ 12.) Both parties agree that Defendant authorized Plaintiff Bramble to work with Defendant's attorney to make a written bid on Aircraft 1066. (Rosatti Decl. at ¶ 8.) In January 2011, Plaintiff Bramble drafted a Letter of Intent ("LOF"). (Id.) The LOI included a clause stating that "Seller shall pay a ...

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