Reza v. Khatun

Filing 154

ORDER denying 123 Motion for Summary Judgment. For the reasons discussed in the attached Memorandum and Order, the Court denies Defendants' motion for summary judgment. Ordered by Judge Margo K. Brodie on 7/25/2017. (Haji, Sara)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------MASHUD REZA,
Plaintiff,
v.

NOT FOR PUBLICATION
MEMORANDUM & ORDER
09-CV-233 (MKB)

ASFIA KHATUN, MUHAMMAD MANNAN and
MANZURUL ISLAM,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Mashud Reza brings the above-captioned action against Defendants Asfia
Khatun, Muhammad Mannan and Manzurul Islam, alleging breach of contract and breach of
fiduciary duty in connection with real estate investments. (Second Am. Compl. (“SAC”) ¶ 9,
Docket Entry No. 65.) On February 6, 2017, Defendants Khatun and Mannan moved for
summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure. (Defs. Mot.
for Summ. J. (“Defs. Mot.”), Docket Entry No. 123; Decl. of Rosemarie Barnett in Supp. of
Defs. Mot. (“Barnett Decl.”), Docket Entry No. 123-1; Defs. Statement of Undisputed Facts
Pursuant to Local R. 56.1 (“Defs. 56.1”), Docket Entry No. 123-2; Defs. Mem. in Supp. of Defs.
Mot. (“Defs. Mem.”), Docket Entry No. 123-3.) For the reasons set forth below, the Court
denies Defendants’ motion for summary judgment.
I.

Background
The following facts are undisputed except as noted. The Court assumes the parties’

familiarity with the facts and procedural posture as discussed in its prior two decisions in the
case. See Reza v. Khatun, No. 09-CV-233, 2013 WL 596600, at *1 (E.D.N.Y. Feb. 13, 2013);

Reza v. Khatun, No. 09-CV-233, 2013 WL 3190335, at *1 (E.D.N.Y. June 21, 2013). In brief,
the dispute arises from Plaintiff’s partnership agreement with Defendants Islam and Mannan in
December of 2003 to invest in residential real estate under the partnership name “Seond.” (Defs.
56.1 ¶¶ 2–4.) Under the terms of the Seond partnership agreement, all three partners were
obligated to fund the partnership equally, as needed, and to share equally in its profits and losses.
(Id. ¶¶ 13–16.) Between February of 2004 and March of 2005, Plaintiff paid $1,368,496 to
Seond to fund the partnership’s real estate investments. (Pl. Statement of Undisputed Facts
Pursuant to Local R. 56.1 (“Pl. 56.1”) ¶ 83, Docket Entry No. 152-2.) Plaintiff alleges that
Mannan and his wife, Khatun, who was not a Seond partner, purchased a number of homes
together in Khatun’s name with Plaintiff’s money and subsequently lost the investment. (SAC
¶¶ 10–12.) The parties agree that the investments have since been liquidated, but they dispute:
(1) whether each property net a profit or a loss for Defendants, (2) in what amount, and (3) what,
if anything, is owed to each partner as a result of the failed investments. (See, e.g., Defs. 56.1
¶¶ 22–23, 83–84, 134–35; Pl. 56.1 ¶¶ 115–16, 134–35.)
II. Discussion
a.

Standard of review

Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, “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); Davis v. Shah, 821 F.3d 231,
243 (2d Cir. 2016); see also Cortes v. MTA NYC Transit, 802 F.3d 226, 230 (2d Cir. 2015). The
role of the court “is not to resolve disputed questions of fact but only to determine whether, as to
any material issue, a genuine factual dispute exists.” Rogoz v. City of Hartford, 796 F.3d 236,

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245 (2d Cir. 2015) (first quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010);
and then citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986)).
b.

The parties dispute issues of material fact

Defendants argue that no genuine issue of material fact remains for trial because they
have produced an unsworn expert report, annexed to their papers and dated March 29, 2016,
which states that Defendants suffered a greater loss than Plaintiff did and, therefore, under the
terms of the Seond partnership agreement, owe Plaintiff nothing. (See Def. Expert Report at 1–
2, annexed to Barnett Decl. as Ex. M.) Plaintiff has not produced an expert report, but relies on
an accounting analysis that all three Seond partners approved in 2008, and on which Defendants’
expert report is allegedly based. (Defs. 56.1 ¶¶ 29–31; Defs. Mem. 5; see E-mail from Pl.
Counsel dated Feb. 2, 2016, annexed to Barnett Decl. as Ex. K.) Plaintiff argues that
Defendants’ report is untrustworthy and erroneous in multiple significant respects. (Pl. Mem. in
Opp’n to Def. Mot. (“Pl. Mem.”) 8–10, Docket Entry No. 152-1.)
At summary judgment, “a district [c]ourt properly considers only evidence that would be
admissible at trial,” as required by Rule 56. See Nora Beverages v. Perrier Grp. of Am., 164
F.3d 736, 746 (2d Cir. 1998); see also Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)
(“[O]nly admissible evidence need be considered by the trial court in ruling a motion for
summary judgment.”). Applying this rule, “[c]ourts in this Circuit have uniformly held that
unsworn expert reports do not satisfy the admissibility requirements of Fed. R. Civ. P. 56(e), and
cannot be used [on] a motion for summary judgment without additional affidavit support.”
Glowczenski v. Taser Int’l, Inc., No. 04-CV-4052, 2010 WL 1957289, at *2 (E.D.N.Y. May 13,
2010) (collecting cases); Gotlin v. Lederman, 616 F. Supp. 2d 376, 389 (E.D.N.Y. 2009); Berk v.
St. Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 352 (S.D.N.Y. 2005); see also

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Capobianco v. City of New York, 422 F.3d 47, 55 (2d Cir. 2005) (acknowledging that unsworn
expert statements are inadmissible hearsay on a motion for summary judgment); Cornell
Research Found., Inc. v. Hewlett–Packard Co., No. 5:01-CV-1974, 2007 WL 4349135, at *19
(N.D.N.Y. Jan. 31, 2007) (finding that the great weight of authority supports the position that
unsworn expert reports “constitute inadmissible hearsay and thus are not worthy of consideration
on a motion for summary judgment”); cf. New Old Music Grp., Inc. v. Gottwald, 122 F. Supp. 3d
78, 86 n.5 (S.D.N.Y. 2015) (considering expert reports on a summary judgment motion because
the defendants “have since filed declarations from their experts verifying their reports under
penalty of perjury”).
Here, the Court declines to consider Defendants’ unsworn expert report on summary
judgment, particularly where Plaintiff clearly takes issue with numerous portions of the report.
The exclusion of Defendants’ expert report commands the Court to deny Defendants’ motion for
summary judgment, as the parties dispute, among other factual issues, who invested more in the
partnership’s real estate holdings, whether the real estate investments were profitable, and if so,
to whose benefit. (See, e.g., Defs. 56.1 ¶¶ 22–23 (asserting that Mannan expended $1.8 million
of his own funds on partnership expenses), 83–85 (explaining that Khatun had no managerial or
operational role in the partnership), 111 (detailing the $3.25 in cash disbursements expended on
the premature sales of properties between 2003 and 2011), 112 (“[L]ess than half of these cash
disbursements were covered by contributions from other partners.”); Aff. of Gerald M. Hertz in
Opp’n to Defs. Mot. (“Hertz Aff.”) ¶¶ 20 (disputing that Mannan invested any cash in the
partnership), 21–30 (disputing calculations and assumptions of Defendants’ expert report), Pl.
56.1 ¶¶ 134–35 (asserting that the partnership obtained net revenues from the sale of properties).)

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III. Conclusion
For the foregoing reasons, the Court denies Defendants’ motion for summary judgment.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: July 25, 2017
Brooklyn, New York

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