United States District Court, W.D. New York
Plaintiffs: Tony R. Sears, Esq. Harold A. Kurland, Esq.
Abigail L. Giarrusso, Esq. Ward Greenberg Heller & Reidy
Defendant: Edwin M. Larkin, Esq. Maura C. McGuire, Esq.
Harter Secrest & Emery LLP
DECISION AND ORDER
CHARLES J. SIRAGUSA UNITED STATES DISTRICT JUDGE
Corporation brought this action alleging that JoJoMonster
Graphics, LLC, breached finance leases, defaulted in paying a
promissory note and failed to return leased equipment. Now
before the Court is Xerox's unopposed motion (Docket No.
[#15]), for summary judgment on its claims, and for dismissal
of JoJoMonster's counterclaims. Xerox's application
facts contained in Xerox Corporation's Statement of Facts
[#15-1] are not opposed, and are therefore deemed admitted.
See, Local Rule of Civil Procedure 56(a)(3). The
Court will only summarize those facts to the extent necessary
to explain its decision. To the extent that there are any
other relevant facts that are disputed, the Court views them
in the light most-favorable to JoJo Monster Graphics, as the
relevant times Xerox Corporation (“Xerox” or
“Plaintiff”) manufactured and leased commercial
printing equipment, while JoJo Monster Graphics
(“JoJoMonster” or “Defendant”) was a
commercial printer. In February 2010, Xerox leased a
commercial printer and server to JoJoMonster, pursuant to an
equipment finance lease. The lease contained three
significant provisions. First, the parties agreed that the
lease was “a ‘finance lease' under Article 2A
of the Uniform Commercial Code, ” and that except as
provided in the lease, JoJoMonster waived its “rights
and remedies as a lessee under Article 2A.” Second, the
lease contained a “hell or high water clause, ”
that stated in pertinent part:
YOUR OBLIGATION TO MAKE ALL PAYMENTS, AND TO PAY ANY OTHER
AMOUNTS DUE OR TO BECOME DUE, IS ABSOLUTE AND UNCONDITIONAL
AND NOT SUBJECT TO DELAY, REDUCTION, SET-OFF, DEFENSE,
COUNTERCLAIM OR RECOUPMENT FOR ANY REASON WHATSOEVER.
IRRESPECTIVE OF XEROX'S PERFORMANCE OF ITS OBLIGATIONS
HEREUNDER, ANY CLAIM AGAINST XEROX MAY BE ASSERTED IN A
SEPARATE ACTION AND SOLELY AGAINST XEROX.
the lease provided JoJoMonster with a “Total
Satisfaction Guarantee” that stated, in pertinent part:
“If you are not totally satisfied with any Xerox-brand
Equipment delivered under this Agreement, Xerox will, at your
request, replace it without charge with an identical model
or, at Xerox's option, with Xerox Equipment with
comparable features and capabilities.”
2013, JoJoMonster had failed to make all required payments
under the lease. At JoJoMonster's request, the parties
executed an Account Modification Agreement. Pursuant to this
agreement, JoJoMonster executed a promissory note in the
amount of $44, 000.00., and Xerox conditionally credited
JoJoMonster $15, 000.00, with the condition being that
JoJoMonster henceforth make all required payments.
2013, the parties entered into a second finance lease for
another commercial printer and server. Again, the parties
agreed that the lease was “a ‘finance lease'
under Article 2A of the Uniform Commercial Code, ” and
that except as provided in the lease, JoJoMonster waived its
“rights and remedies as a lessee under Article
2A.” Additionally, the second lease contained a
“hell or high water clause” and “Total
Satisfaction Guarantee” identical to those in the first
April 2015, JoJoMonster has not made payments to Xerox as
required by the promissory note. Further, since August 2015,
JoJoMonster has not made payments to Xerox as required by the
two finance leases and the modification agreement.
February 3, 2016, Xerox commenced this action. In pertinent
part, the Complaint [#1] purports to assert three claims for
monetary damages: 1) breach of the first finance lease, as
modified; 2) breach of the promissory note; and 3) breach of
the second finance lease. The Complaint also seeks a declaratory