Hepburn v. Ferris et al

Filing 119

MEMORANDUM AND ORDER denying 109 Motion for Summary Judgment; denying 111 Motion for Summary Judgment; denying 112 Motion for Summary Judgment. For the reasons stated herein, Plaintiff' and Defendants' motions for summary judgment are denied. Counsel are reminded that jury selection for the trial of this matter is scheduled for May 18, 2015 at 9:30a.m. (Ordered by Judge Leonard D. Wexler on 5/5/2015.) (Fagan, Linda)

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 NY

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LONG ISLAND OFFICE

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UNITED STATES DISTRJCT COURT
EASTERN DISTRICT OF NEW YORK

MAY 0 5 2015

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MEMORANDUM AND ORDER

JOSEPH HEPBURN,

cv 13-5474

Plaintiff,

(Wexler, J.)

-againstPETER FERRIS a/k/a PETE FERRIS, BROTHERS
ALUMINUM CORP., BANK OF AMERICA,
N.A., M&T BANK CORPORATION and
LIBERTY MUTUAL GROUP, INC.,
Defendants.

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APPEARANCES:
B. SHAMUS O'DONNILEY, ESQ., P.C.
BY: B. Shamus O'Donniley, Esq.
Attorneys for Plaintiff
23-15 Steinway Street
Astoria, New York 11105
LISA M. FIRSHING, ESQ.
Attorney for Defendant Peter Ferris
56 Driving Park Avenue
Lynbrook, New York 11563
SACCO & FILLAS, LLP
BY: Mathew W. Beckwith, Esq.
Luigi Bandimarte
Attorneys for Defendant Brothers Aluminum Corp.
31-19 Newtown Avenue
Astoria, New York Ill 02
WEJ<LER, District Judge:
In this action, Plaintiff Joseph Hepburn ("Plaintiff" or "Hepburn") brings this action
claiming conversion, fraud and unjust enrichment against Defendants Peter Ferris ("Ferris") and
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Brothers Aluminum Corp. ("Brothers Aluminum"). Plaintiff and both Defendants move for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Fed. R. Civ.
Proc."). For the reasons stated below, the Court finds that issues of fact exist that preclude
granting summary judgment.
BACKGROUND
As reflected in the parties' Local 56.1 Statements submitted in connection with their
motions, the following facts are undisputed: Plaintiff Hepburn is the owner of a premises in
Baldwin, New York, which suffered damage as a result of Hurricane Sandy in October 2012. In
January 2013, Hepburn's insurer, Liberty Mutual Group Inc. ("Liberty Mutual") issued a check in
the amount of$50,784.51, payable to Joseph Hepburn, Wells Fargo Bank NA and Sovereign
Bank for compensation for the property damages suffered.
It is undisputed that Plaintiff entered in to a contract with Defendant Brothers Aluminum

to perform home repairs in November 2012, but a dispute exists as to the amount of that contract.
Brothers Aluminum's 56.1 Statement asserts that the contract amount was $80,300, and that after
further renovations were requested on the second floor of the premises, the total final price for
the renovations was $87,690.00. Plaintiff disputes this, denying that any further work on the
second floor was requested, and asserts that the one written contract was never fully performed
by Defendant. See Plaintiff Hepburn's Rule 56.1 Counter Statement of Brothers Aluminum
Undisputed Material Facts ("Plaintiff's Response"), ,-r,-r 1-4. It is undisputed that Plaintiff made
three (3) three (3) $10,000.00 payments to Brothers Aluminum. See Plaintiff's Response, ,-r 5.
There is also no dispute that originally Plaintiff deposited the Liberty Mutual check into
his account at Bank of America, which was rejected, since, although endorsed by Hepburn, it was

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not endorsed by the other payees, Wells Fargo Bank, N.A. and Sovereign Bank. See Response of
Peter Ferris to Plaintiffs 56.1 Statement ofUndisputed Material Facts ("Ferris Response"), ,-r 6;
Response ofBrothers Aluminum to Plaintiffs 56.1 Statement ("Brothers Aluminum Response"),

,-r 6. It is also undisputed that the check was later deposited by Brothers Aluminum into its
account without the endorsement of Wells Fargo and Sovereign Bank. See Ferris Response, ,-r 7;
Brothers Aluminum Response, ,-r 7.
Yet, a significant dispute exists as to why Plaintiff gave Brothers Aluminum the check.
In his complaint, Plaintiff alleges that he was told by Defendant Ferris that Ferris could "get that
check deposited" through Ferris' bank account. Complaint ("Cmplt."), ,-r,-r 19-20. Defendants
Ferris and Brothers Aluminum assert that Plaintiff endorsed the check in blank, and handed the
check to Ferris. See 56.1 Statement ofPeter Ferris, ,-r,-r 9, 10; 56.1 Statement ofBrothers
Aluminum, ,-r,-r 9,1 0. Plaintiff disputes this, asserting that he intended for the check to be
deposited in his own account, evidenced by the account number written on the check, and that
Ferris was not handed, but "took" the check. See Plaintiffs Response, ,-r,-r 9, 10.
By order dated January 20, 2015, this Court granted M&T Bank's motion to interplead
the funds at issue, and directed that $50,784.51, with applicable interest, if any, be deposited into
the registry of the Court. See Order at docket entry 90.
DISCUSSION
The standards for summary judgment are well settled. Rule 56( a) of the Federal Rules of
Civil Procedure states that summary judgment is appropriate only if "the movant shows that 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); Mihalik v. Credit Agricole Cheuvreux North America, Inc., 2013 WL
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1776643 (2d Cir. 2013). The moving party bears the burden of showing entitlement to summary
judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). In the context of a Rule
56 motion, the court "is not to weigh the evidence but is instead required to view the evidence in
the light most favorable to the party opposing summary judgment, to draw all reasonable
inferences in favor ofthat party, and to eschew credibility assessments." Amnesty Am. v. Town
ofW. Hartford, 361 F.3d 113, 122 (2d Cir. 2004).
Once the moving party has met its burden, the opposing party '"must do more than simply
show that there is some metaphysical doubt as to the material facts .... [T]he nonmoving party
must come forward with specific facts showing that there is a genuine issue for trial."' Caldarola
v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002), quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986). As the Supreme Court has stated, "the mere
existence of some alleged factual dispute between the parties" alone will not defeat a properly
supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). The nonmoving party may not rest upon mere conclusory allegations or denials
but must set forth "'concrete particulars"' showing that a trial is needed. R.G. Group, Inc. v.
Hom & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984), quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir.1978). Accordingly, it is insufficient for a party opposing
summary judgment '"merely to assert a conclusion without supplying supporting arguments or
facts.'" BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603,615 (2d Cir. 1996),
quoting Research Automation Corp., 585 F.2d at 33.
The Court has reviewed the parties' submissions and concludes that issues of material fact
preclude summary judgment. Various issues of material fact exist, including, most importantly,
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whether or not Plaintiff gave Defendant Ferris the check for payment for work done by Ferris and
Brothers' Aluminum in accordance with the repair contract between the parties, or whether the
check was given by Plaintiff to be ultimately deposited in Plaintiff's account. Accordingly,
Plaintiff's and Defendants' motions for summary judgment are denied. See Fed. R. Civ. P. 56(a)
(a party seeking summary judgment must demonstrate that "there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter oflaw"); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Mihalik v. Credit Agricole Cheuvreux North America, Inc.,
2013 WL 1776643 (2d Cir. 2013).
CONCLUSION
For the foregoing reasons, Plaintiff' and Defendants' motions for summary judgment are
denied. Counsel are reminded that jury selection for the trial of this matter is scheduled for May
18, 2015 at 9:30a.m.

/]

SO ORDERED.

s/ Leonard D. Wexler

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LtEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Central Islip, New York
May;; 2015

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