JB Aviation, LLC et al v. R Aviation Charter Services, LLC et al
ORDER denying 40 : Defendant's Motion for Summary Judgment is denied, see attached Memorandum. Ordered by Judge Denis R. Hurley on 9/5/2017. (Bochner, Francesca) (Main Document 48 replaced on 9/5/2017) (Lundy, Lisa). (Main Document 48 replaced on 9/5/2017) (Lundy, Lisa).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JB AVIATION, LLC, and JEFFERSON BRAMBLE,
MEMORANDUM AND ORDER
14 CV 5175 (DRH) (AKT)
- against R AVIATION CHARTER SERVICES, LLC, and
BARROWS & TEHRANI PLLC
Attorney for Plaintiffs
369 Lexington Avenue, 2nd Floor
New York, NY 10017
Michael C. Barrows, Esq.
THE LAW OFFICES OF ANTHONY A. CAPETOLA
Attorney for Plaintiffs
2c Hillside Avenue
Williston Park, NY 11596
Anthony A. Capetola, Esq.
SCHLACTER & ASSOCIATES
Attorneys for Defendants
450 Seventh Avenue
New York, NY 10123
Jed R. Schlacter, Esq.
Bret I. Herman, Esq.
HURLEY, Senior District Judge:
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
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
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
(“LOI”). (Id.) The LOI included a clause stating that “Seller shall pay a 1.5% of sale price to
buyer’s agent (JB Aviation, LLC Westchester County Airport 2 Hangar Road, White Plans NY
10604).” (Ex. A to Plaintiff’s Mem. at 106.)
After the offer in the January 2011 LOI was rejected, Plaintiff drafted a second LOI in
May 2011. (Ex. L to Plaintiff’s Mem. at 1.) The second LOI stated that “Purchaser shall pay a
1.5% of the sale price to buyer’s agent (JB Aviation, LLC Westchester County Airport 2 Hangar
Road, White Plans NY 10604).” (Ex. F to Herman Aff. at 3.) Buyer was defined as RACS, and
Defendant as manager. (Id. at 1.)
Plaintiff Bramble was involved in negotiating the price, securing the loan, and drafting
the Purchase and Sale Agreement (“PSA”) for Aircraft 1066. (Ex. L to Plaintiff’s Mem.; Ex. G;
Ex. M to Plaintiff’s Mem. at 2.) The final Aircraft PSA, executed on July 19, 2011, omitted the
aforementioned clause regarding paying a 1.5% of sale price to buyer’s agent. (Ex. H to Herman
Aff.) The PSA does not reference Plaintiffs, however it does include a clause stating that each
party to the PSA must bear its own transactional costs, “including, without limitation, any
broker’s commissions[.]” (Id. at §7.15.) Defendant ultimately acquired Aircraft 1066, though
Plaintiff was not aware of or involved in the closing. (Bramble Depo. at 96.)
Plaintiffs issued six invoices to Defendant from May 24, 2011 to January 2, 2012,
totaling $60,000, all of which have been paid in full. (Ex. C to Herman Aff.; Rosatti Decl. at ¶
12.) Five of these invoices state that they are for consulting fees, and two of these five also say
“Project Manager.” (Ex. C to Herman Aff. at 48–52.) Plaintiff asserts that these invoices were
for upfront expenses, such as travel, and project management expenses. (Bramble Depot. at
101.) However, Defendant claims that these invoices were for “consulting services” and covered
all of the services rendered to Defendant related to his aircraft search and acquisition. (Rosatti
Decl. at ¶ 12.)
Summary Judgment Standard
Summary judgment, pursuant to Rule 56, is appropriate only where 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). The relevant governing law in each case determines which
facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). When making this determination, a court must view all
facts “in the light most favorable” to the non-movant, Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014), and “resolve all ambiguities and draw all permissible factual inferences in favor of the
[non-movant],” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft,
336 F.3d 128, 137 (2d Cir. 2003)). Thus, “[s]ummary judgment is appropriate [only] where the
record taken as a whole could not lead a rational trier of fact to find for the [non-movant].” Id.
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)) (internal
quotation marks omitted).
To defeat a summary judgment motion properly supported by affidavits, depositions, or
other documentation, the non-movant must offer similar materials setting forth specific facts
demonstrating that there is a genuine dispute of material fact to be tried. Wright v. Goord, 554
F.3d 255, 266 (2d Cir. 2009). The non-movant must present more than a "scintilla of evidence,"
Fabrikant v. French, 691 F.3d 193, 205 (2d Cir. 2012) (quoting Anderson, 477 U.S. at 252), or
"some metaphysical doubt as to the material facts," Brown v. Eli Lilly & Co., 654 F.3d 347, 358
(2d Cir. 2011) (quoting Matsushita, 475 U.S. at 586-87), and “may not rely on conclusory
allegations or unsubstantiated speculation,” Id. (quoting FDIC v. Great Am. Ins. Co., 607 F.3d
288, 292 (2d Cir. 2010).
The district court considering a summary judgment motion must also be "mindful . . . of
the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928
(5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the "evidentiary burdens that the
respective parties will bear at trial guide district courts in their determination[s] of summary
judgment motions," Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). "[W]here
the [non-movant] will bear the burden of proof on an issue at trial, the moving party may satisfy
its burden by pointing to an absence of evidence to support an essential element of the [non6
movant’s] case.” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014)
(quoting Brady, 863 F.2d at 210-11) (internal quotation marks omitted). Where a movant
without the underlying burden of proof offers evidence that the non-movant has failed to
establish his claim, the burden shifts to the non-movant to offer “persuasive evidence that his
claim is not 'implausible.” Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587). “[A]
complete failure of proof concerning an essential element of the [non-movant’s] case necessarily
renders all other facts immaterial.” Crawford, 758 F.3d at 486 (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)).
Elements of Breach of Contract Claim
Under New York law, there are four elements of a cause of action for breach of contract:
(1) the existence of a contract; (2) performance of the contract by one party; (3) breach by the
other party; and (4) damages suffered as a result of the breach. Transcience Corp. v. Big Time
Toys, LLC, 50 F. Supp. 3d 441, 450–51 (S.D.N.Y. 2014) (citing Beautiful Jewellers Private Ltd.
v. Tiffany & Co., 438 Fed. Appx. 20, 21–22 (2d Cir. 2011). As explained infra, the Court finds
that there are material questions of fact regarding element (1) the existence of the oral brokerage
agreement, and element (2) whether Plaintiffs performed the contract by finding Aircraft 1066.
Summary of Arguments
Whether There Was a Brokerage Agreement
As discussed above, Defendant contends in his motion for summary judgment that there
was never any brokerage agreement. However, he does not include this in his Rule 56.1
statement. Rather, he only states that there was “no written brokerage agreement,” no draft or
proposal of such an agreement, and no e-mails or invoices referencing such an agreement.
(Def.’s 56.1 at ¶ ¶ 2, 3.)
By contrast, Plaintiff Bramble contends that there was an oral brokerage agreement that
was entered into in June 2010. (Bramble Depo. at 95.) Bramble claims that the Parties agreed
that Plaintiff Bramble would receive a 1.5% brokers commission on the purchase price of an
aircraft, in addition to reimbursement for travel and lodging expenses incurred therein. (Id.)
“Under New York law, parties are free to enter into a binding contract without
memorializing their agreement in a fully executed document.” Winston v. Mediafare
Entertainment Corp., 777 F.2d 78, 80 (2d Cir. 1985). As the Court noted in its November 12,
2015 decision granting in part and denying in part Defendants’ motion to dismiss, an oral
brokerage agreement for an aircraft would not violate the New York statute of frauds unless “the
agreement by its terms could not be performed within one year.” Gentile v. Conley, 636 F. Supp.
2d 246, 253 (S.D.N.Y. 2009) (citing Gen. Oblig. L. § 5-701(a)(1). As the Court concluded in its
prior decision, and as it concludes again here, nothing in the Complaint or other submissions
suggest that Plaintiffs could not have procured an aircraft within one year. See JB Aviation, 143
F. Supp.3d at 47.
A perusal of the Complaint indicates that there is no claim for an implied-in-fact contract.
Rather, Plaintiffs seem to claim that the Parties entered into an express contract for Plaintiffs to
act as a private aircraft broker and for Defendant to pay Plaintiffs an agreed upon percentage of
the sales price of the aircraft. 1 Therefore, the Court agrees with Defendant that Plaintiffs’
implied-in-fact contract argument in their opposing papers is superfluous.
“Under New York law, absent a written agreement between the parties, ‘a contract may be
implied where inferences may be drawn from the facts and circumstances of the case and the
intention of the parties as indicated by their conduct.’” Bear Sterns Inv. Products, Inc. v. Hitachi
Automotive Products (USA), Inc., 401 B.R. 598, 615 (S.D.N.Y. 2009) (quoting Matter of Boice,
226 A.D.2d 908, 910 (3d Dep’t 1996)). By contrast, an express contract arises from declared
intent. See id.
Nevertheless, Plaintiffs have otherwise presented sufficient evidence for a reasonable
fact-finder to conclude that an oral brokerage agreement existed between the parties, requiring
Defendant to pay 1.5% of the purchase price of the aircraft to Plaintiffs. For example, the first
draft of the LOI states that JB Aviation, LLC is buyer’s agent. (Ex. A to Plaintiff’s Mem. at
106.) The second draft of the LOI—which Defendant signed—states that JB Aviation, LLC is
buyer’s agent and that Purchaser (R Aviation Charter Services, LLC) shall pay “a 1.5% of sale
price to buyer’s agent.” (Ex. F to Herman Aff. at 3.) Defendant received a copy of this second
LOI by e-mail on April 16, 2011, but did not sign it until May 9, 2011, so he had ample time to
review the document. (Ex. L to Plaintiff’s Mem. at 1; Ex. F to Herman Aff. at 3.) Defendant
claims that the fact that these provisions were excluded from the final PSA means that there was
never any oral brokerage agreement. However, PSA ¶ 7.15 provides: “Each party to this
Agreement shall bear its own transactional costs and expenses including, without limitation, any
brokerage commissions and/or attorney’s fees.” (Ex. H to Herman Aff. at 15.) Thus, the
exclusion from the PSA of a specific 1.5% fee to be paid to Plaintiffs does not ipso facto
foreclose the possibility that there was an oral brokerage agreement because the requirement to
pay Plaintiffs’ fee would have been encompassed in the broadly stated provision in PSA ¶ 7.15.
Furthermore, Defendant admits in his deposition that Plaintiff Bramble traveled to Ft.
Lauderdale, Florida; Pittsburgh, Pennsylvania; Las Vegas, Nevada; and Tulsa, Oklahoma to view
aircrafts on Defendant’s behalf. (Ex. E to Plaintiffs’ Mem. in Opp. at 118–19.) While
Defendant claims these trips were merely to look over the condition of potential aircraft, this is
contradicted by e-mails exchanged between Plaintiff Bramble and Defendant’s attorney. (See,
e.g., Ex. F to Plaintiffs’ Mem. at 2 (E-mail from Lee Goldberg, Defendant’s attorney, to Plaintiff
Bramble (June 13, 2010) (reply from Goldberg regarding information on an aircraft that Plaintiff
Bramble located, saying that Goldberg and Defendant were going to look at the aircraft and
requesting the Plaintiff Bramble call him to discuss).) Moreover, Plaintiff Bramble was involved
in negotiating financing for Defendant to acquire Aircraft 1066 and even had a hand in drafting
the PSA. (Anzalone Decl. at ¶ 6; Bramble Decl. at ¶ 10; see also Ex. G to Plaintiffs’ Mem.)
Defendant’s contention that all of Plaintiffs’ services were performed as part of a
consulting arrangement is undermined by Plaintiff Bramble’s communications on behalf of
Defendant with other buyers and brokers, in which he is the primary point of contact with third
parties and appears to be searching for planes. (See, e.g., Ex. F to Plaintiffs’ Mem. at 6 (E-mail
from Tom Connelly, Independent Contractor for JB Aviation, LLC, to Plaintiff Bramble (Oct.
26, 2010) (discussing “29 aircraft for sale with pricing running from 5.0 million for an early
model to 12.0 million for a 2006-7 model year” as well as thanking Plaintiff Bramble for
forwarding information on another aircraft to Defendant’s attorney).) Moreover, Gary Anzalone
(“Anzalone”), the Senior Vice President of Aero Toy Stores at the time Aircraft 1066 was
purchased, attests that his interactions with Plaintiff Bramble were as Defendant’s agent.
(Anzalone Decl. at ¶ 4.)
The evidence Defendant presents in support of his summary judgment motion, when
considered in conjunction with Plaintiffs’ submissions, is insufficient to establish that there are
no genuine issues of material fact for trial regarding whether there was an oral brokerage
B. Whether Plaintiffs Performed Under the Brokerage Agreement
Defendant argues in the alternative that even if there had been an oral brokerage
agreement, Plaintiffs never performed their contractual obligation by finding Aircraft 1066. This
claim gives rise to two sub-questions of fact: (1) whether Plaintiffs indeed found Aircraft 1066
for Defendant before Defendant had ever seen the plane himself; and (2) whether performance of
the brokerage agreement required that Plaintiffs find Aircraft 1066 before Defendant had ever
seen it (as opposed to finding it independently at a later point after the price had decreased along
with performing other duties such as negotiating financing, drafting LOIs, reviewing the PSA,
etc.). We will address each sub-question independently.
1. Whether Plaintiffs Found Aircraft 1066
Since the Court has deemed all material facts set forth in Defendant’s Rule 56.1
statement admitted to the extent that they are adequately supported with record evidence, the
Court will accept Defendant’s assertion that he saw Aircraft 1066 in 2010 before Plaintiff
Bramble knew of the aircraft. (Def.’s 56.1 at 4.) As we stated above, a “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). However, here, Defendant has provided
sufficient support for his assertions that he saw the aircraft for the first time before Plaintiffs
brought it to his attention. (See, e.g., Shirazipour Decl. at 2.) Thus, the Court concludes for
purposes of this summary judgment motion that Plaintiffs did not find Aircraft 1066 before
Defendant had already seen it.
2. Whether Performance of the Brokerage Agreement Required Locating Aircraft
On the second question of fact, it is unclear based on the evidence in the record whether
performance of the alleged oral brokerage agreement required Plaintiffs to find an aircraft that
Defendant had never seen before. Defendant’s Rule 56.1 Statement provides that “if an oral
brokerage agreement existed, any brokerage commission to be paid to Bramble and/or JBA was
predicated on Bramble and/or JBA finding Aircraft 1066 for [Defendant].” (Def.’s 56.1 at 4.)
However, Defendant cites to evidence in the record that does not support this assertion. While it
is accurate that Plaintiff Bramble states in his deposition that the oral agreement entailed “finding
[Defendant] the airplane as part of the brokerage and the percentage[,]” he also states that “[t]he
agreement was 1.5 percent brokerage from the point of me finding the aircraft, negotiating the
price, up to the signing of the purchase agreement.” (Ex. B to Herman Aff. at 91, 101.) This
suggests that the oral brokerage agreement entailed finding an aircraft, negotiating the price, and
performing other related duties preparatory to the signing of the PSA.
Plaintiff Bramble presents sufficient evidence that he performed these concomitant
duties. For example, Plaintiff Bramble was involved in negotiating the price down for Aircraft
1066, as confirmed by Defendant’s assertion that Plaintiff Bramble drafted the two LOIs.
(Def.’s 56.1 at 3.) Furthermore, Anzalone states:
[E]xtensive efforts were taken by Mr. Bramble to ensure the Aircraft 1066 was
airworthy and in suitable condition for Mr. Rosatti’s purchase. To my knowledge,
Mr. Bramble was instrumental in this n [sic] process, having personally traveled to
and from [Aero Toy Store] on numerous occasions to resolve various issues,
including managing delays from the maintenance facility, the various vender and
the completion center[.]”
(Anzalone Decl. at ¶ 6.) Thus, if “finding” meant locating the aircraft at some time and
performing other duties related to closing on such aircraft, then Plaintiffs present sufficient
evidence for a reasonable fact-finder to conclude that Plaintiffs performed under the alleged oral
brokerage agreement. The invoices that Defendant cites as definitive proof that Plaintiffs’
actions were carried out as part of a consultant arrangement as opposed to a brokerage agreement
are called into question by Plaintiff Bramble’s deposition, in which he states that “Mr. Rosatti
had to pay me up front for my expense, as part of the brokerage, and in the second agreement for
the project management, he had to pay for that expense, as well, for me to oversee the entire
project[.]” (Bramble Depo. at 101.) In other words, these invoices may have been for a range of
services, some of which were part of or related to the alleged brokerage agreement, and others of
which were separate or additional to the alleged brokerage agreement. The fact that a later,
currently unpaid, invoice lists duties such a negotiating the price under “Project Manager
Summary of Duties and Responsibilities” does no suffice to eclipse the other evidence such as
the LOIs, the e-mail correspondence, Anzalone’s declaration, and Plaintiff Bramble’s deposition
for purposes of this summary judgment motion. (See Ex. E. to Herman Aff. at 15.)
Defendant does not claim that Plaintiffs never located Aircraft 1066, nor does Defendant
claim that he was responsible for alerting Plaintiffs to the existence of Aircraft 1066. In fact,
Defendant does not even offer evidence showing that he told Plaintiffs that he had previously
seen Aircraft 1066 when Plaintiffs first presented it to him. Rather, Defendant simply claims
that he had seen Aircraft 1066 in 2010, before Plaintiff Bramble knew of the plane, and that the
price was too expensive at that time. (Def.’s 56.1 at 4; Rosatti Decl. at 2.) Neither Defendant
nor Plaintiffs cite any case law addressing what “finding” means in the present context, nor do
they provide an industry standard for the term. Thus, even if Defendant found Aircraft 1066
first, there is still a genuine issue of material fact for trial regarding whether Plaintiffs performed
the oral brokerage agreement under its own terms.
Defendant has failed to demonstrate the absence of a material issue of fact vis-à-vis the
adequacy of Plaintiffs’ performance under the alleged oral brokerage agreement.
For the foregoing reasons, Defendant’s motion for summary judgment is denied.
Dated: Central Islip, New York
September 5, 2017
Denis R. Hurley
Unites States District Judge
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