United States District Court, E.D. New York
BARROWS & TEHRANI PLLC Attorney for Plaintiffs By:
Michael C. Barrows, Esq.
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.
MEMORANDUM AND ORDER
R. HURLEY, UNITES STATES DISTRICT JUDGE
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.
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
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.
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).
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.
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
following facts are undisputed, unless otherwise stated.
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.)
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 ...