Gonzalez Juanes et al v. Lyzwinski et al

Filing 45

MEMORANDUM-DECISION AND ORDER denying Pltfs' 29 Partial Motion for Summary Judgment. Signed by US Magistrate Judge Andrew T. Baxter on 6/22/12. (sfp, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
_______________________________
JUAN A. GONZALEZ JUANES, et al.,

No. 8:10-CV-459 (ATB)

Plaintiffs,
v.
MAREK LYZWINSKI, et al.,
Defendants.
____________________________________
THOMAS W. PLIMPTON, ESQ., for Plaintiffs
MICHAEL R. WOLFORD, ESQ., for Defendants
ANDREW T. BAXTER, U.S. Magistrate Judge

MEMORANDUM-DECISION AND ORDER
The instant diversity action arises from a failed commercial transaction
involving the intended purchase and sale of a helicopter. Plaintiffs, representing the
would-be purchaser(s), have sued the defendants for the return of a $300,000 deposit,
asserting claims of conversion, unjust enrichment, breach of contract, and breach of an
implied covenant of good faith and fair dealing. (Am. Compl., Dkt. No. 21). The
defendants/ seller(s), in turn, have filed a counterclaim, alleging that the plaintiffs
breached the terms of agreements between the parties and failed to negotiate in good
faith towards the consummation of the intended transaction. (Answer to Am. Compl.
with Countercl. ¶¶ 47-54, Dkt. No. 22).
Presently before this court is the plaintiffs’ partial motion for summary

judgment on their breach of contract claim, based on a Letter of Intent (“LOI”)
between plaintiff Gonzalez and defendant Southern Winds Aviation, LLC (“SWA”).1
(Dkt. Nos. 29-32). Plaintiffs argue that, under the unambiguous terms of the LOI, they
are entitled to summary judgment for the return of a $300,000 deposit plus interest,
both against SWA, and, by “piercing the corporate veil,” against its sole owner,
defendant Lyzwinksi. Defendants have opposed plaintiffs’ motion (Dkt. No. 41),
asserting, inter alia, that plaintiffs forfeited their right to the return of the deposit by
failing to negotiate in good faith about the terms of the transaction that were left open
by the LOI. Plaintiffs filed a reply (Dkt. No. 42), and on April 4, 2012, the court
conducted oral argument on the motion.
For the reasons set forth below, this court denies plaintiffs’ motion for partial
summary judgment. The court concludes that, given that all parties have
acknowledged that the LOI imposed a mutual duty to negotiate in good faith towards
the completion of the intended purchase and sale of the helicopter, there are material
issues of fact as to whether plaintiffs breached this duty and forfeited, in whole or
part, any right to the return of the deposit. Given that conclusion, the court need not
address several other issues raised by the parties, including the question of whether
the corporate veil should be pierced so that defendant Lyzwinksi would be liable on
any judgment that might ultimately be obtained against SWA.

1

The motion was originally made returnable before Hon. Glenn T. Suddaby, the U.S.
District Judge originally assigned to this case. Thereafter, with the consent of all parties, Judge
Suddaby referred the case to me to conduct all proceedings and order the entry of judgment,
pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
2

I.

Summary of Relevant Facts
Plaintiff Executive Express Aviation S.A. de C.V. (“EEA”) is a Mexican

corporation that rents or charters airplanes and helicopters, and plaintiff Juan A.
Gonzalez Juanes (“Gonzalez”) is a board member of EEA, authorized to conduct
business on behalf of that corporation. (Pls.’ Stmt. of Mat. Facts ¶¶ 8-9, Dkt. No. 291).2 Defendant Southern Winds Aviation, LLC (“SWA”) is engaged in the sale and
lease of aircraft, primarily helicopters, and defendant Marek Lyzwinski is the
president, owner, and sole employee of SWA. (Pls.’ Stmt. of Mat. Facts ¶¶ 10-11).3
In January 2008, plaintiff Gonzalez and defendant Lyzwinski, on behalf of
SWA, entered into a “Letter of Intent” (“LOI”) relating to the intended purchase, by
plaintiffs, of a 2008 model Agusta Koala helicopter from defendants. (Pls.’ Stmt. of
Mat. Facts ¶ 21; LOI, Dkt. No. 41-4). Although the parties to the LOI did not fully
and/or timely comply with certain of its provisions,4 counsel for both sides agreed, at
oral argument, that the LOI was a binding preliminary agreement between the parties.
(LOI ¶ 13). The LOI was “subject to,” inter alia, the finalization and execution of an
Aircraft Purchase Agreement between the parties on or before March 31, 2008, and

2

The court will rely on the plaintiffs’ Statement of Material Facts to the extent it is not
disputed by the defendants’ Response (Dkt. No. 41-1).
3

Because the court need not address the issue of whether the “corporate veil” of SWA
should be pierced, it will not discuss the conflicting evidence regarding defendant Lyzwinski’s
manner of operating SWA.
4

For example, the seller later agreed to a $200,000 discount from the $3,900,000
purchase price recited in the LOI, and the purchaser’s $300,000 deposit was paid to defendants
well after the deadline in the LOI.
3

the LOI was to be “superseded and replaced by” the Purchase Agreement. (LOI ¶¶ 13,
17b). Although the LOI set forth many terms of the agreement between the parties
regarding the intended purchase and sale of the helicopter, counsel agreed, at oral
argument, that the LOI anticipated further negotiation regarding several key
provisions of the Purchase Agreement, including the purchase price (Defts.’ Mem. of
Law at 8, Dkt. No. 41-3) and the particulars of how and when the balance of the
purchase price would be deposited in escrow before the delivery of the helicopter
(LOI ¶ 4.3).
As noted, the LOI required the purchaser to wire transfer a $300,000 deposit to
a listed bank account. (LOI ¶¶ 4.1, 5). The LOI stated:
In case the contract is not concluded, all advanced payments will be returned to
the Purchaser by a wire transfer. If Purchaser fails to provide the remaining
payment by the date specified in the Purchase Agreement and the Seller fully
complied with the LOI and Purchase Agreement, the initial escrow deposit
becomes nonrefundable.
(LOI ¶ 15). The purchaser’s $300,000 deposit was wire transferred on or about March
14, 2008, well after the deadline in the LOI; however, as defense counsel
acknowledged at oral argument, the defendants accepted and excused the lateness of
this payment. (Gonzalez Dep. at 47, Dkt. No. 31-1; Pls.’ Stmt. of Mat. Facts ¶ 25).
The LOI included an attachment which listed the specifications of the helicopter
to be delivered to the purchaser. (LOI at pp. 6-8). Plaintiff Gonzalez, based on his
perception of the presentation of the subject helicopter by the salesmen associated
with defendant Lyzwinski, contended that the helicopter should be delivered with air
conditioning, a headliner, and a finish coat of paint, at the base price. (Gonzalez Dep.
4

at 28, 60-64). Defendant Lyzwinski was willing to provide these features; but,
because these items were not included in the specifications listed in the LOI, he
demanded that the purchaser should pay an additional $120,000 to cover the costs of
the modifications. (Defts.’ Mem. of Law at 3; 7/16/08 Lyzwinski e-mail, Dkt. No. 415; 7/30/08 Lyzwinski e-mail, Dkt. No. 41-7; Lyzwinski 1/27/10 Dep. at 55-65, Dkt.
No. 30-1).5
Defendants point to an e-mail chain between plaintiff Gonzalez and his lawyer,
in late July 2008, as evidence that the plaintiffs’ proposed modifications to the
preliminary agreement between the parties were intended to create a pretext for
abandoning the helicopter purchase. (Dkt. No. 41-6). Plaintiff Gonzalez advised his
lawyer that he and his partner decided not to terminate the LOI with defendants
because “it would probably be too costly,” (Id.), which defendants interpret as an
admission that Gonzalez knew the $300,000 was, at that point, nonrefundable,
(Lyzwinski Aff. ¶ 29, Dkt. No. 41-2). Gonzalez continued “We should give it a try to
modify the terms of the contract and perhaps the conditions in which the helicopter

5

Plaintiff Gonzalez and defendant Lyzwinski started a similar transaction, resulting in the
completed purchase/sale of another helicopter, shortly before the failed transaction that is the
subject of this action. When the first helicopter was delivered in June 2008 (which was after the
date that the parties entered into LOI with respect to the second transaction), Gonzalez
complained that the helicopter lacked several finishing features–air conditioning, exterior paint,
and interior seat cushions. The purchasers ultimately had to have these features added by a
separate company, at the cost of $195,000. (Gonzalez Reply Aff. ¶¶ 7-10, Dkt. No. 42-2, & Ex.
B, Dkt. No. 42-4). Gonzalez asserts that he requested adding certain additional features to the
second helicopter, because he was disappointed with the first helicopter, as delivered. (Gonzalez
Reply Aff. ¶ 12). The first helicopter purchase was a cash transaction, so the timing of the
escrow of the purchase price, discussed below, would not have been an issue. (Gonzalez Reply
Aff. ¶ 8).
5

will be delivered.” (7/27/08 Gonzalez e-mail). In an e-mail to his lawyer the next
day, Gonzalez states: “If he [defendant Lyzwinski] does not accept the contract then
we might decide to cancel the LOI.” (7/28/08 Gonzalez e-mail). Plaintiff Gonzalez
asserts that his concern about the “costs” of cancelling the LOI with defendants
related to the risk that his company could lose one or more customers if they were not
able to make a helicopter available to those customers, not a belief that the $300,000
deposit was nonrefundable. (Gonzalez Reply Aff. ¶ 25).
On August 12, 2008, an attorney for plaintiffs forwarded, to Lyzwinski, a
proposed Purchase Agreement signed by Gonzalez. (Dkt. No. 41-9). The attorney’s
e-mail stated that the $300,000 deposit previously paid by Gonzalez was “applicable
to this contract and [is] to be used as indicated in the attached contract.” (Dkt. No. 419 at 1). The draft agreement stated “The Deposit is nonrefundable and shall be
retained by Seller under all circumstances other than an inability or failure of Seller to
deliver the Aircraft” according to the attached specifications. (Gonzalez Draft
Purchase Agreement ¶ 3, at p. 3). The Purchase Agreement signed by Gonzalez
proposed a total purchase price of $3,700,000 for the helicopter, to include the air
conditioning, headliner, and finish painting. (Id. ¶ 2 & Attach. 1). The Gonzalez draft
also provided that the $3,400,000 balance on the purchase price would be placed with
an escrow agent “at or before Closing in immediately available funds.” (Id. ¶ 2).
Lyzwinski promptly rejected the plaintiffs’ proposal and did not sign plaintiffs’
version of the Purchase Agreement. (Lyzwinski 8/14/08 e-mail, Dkt. No. 41-10 at 1;
Pls.’ Stmt. of Mat. Facts ¶ 28). In an e-mail dated August 29, 2008, plaintiffs’
6

attorney advised Lyzwinski that, after discussing defendants’ position with Gonzalez,
he “does not want to proceed with the purchase.” (Dkt. No. 41-12). Plaintiffs’
counsel explained that the purchase of the helicopter was being financed, and that the
lender would not advance funds for the balance of the purchase price five days before
delivery, as the defendants demanded. (Id.). Plaintiffs’ attorney also advised
Lyzwinski that the financing entity would not move forward without a purchase
agreement signed by both parties. (Id.).6
By e-mail dated September 18, 2008 (Dkt. No. 41-14), Lyzwinski forwarded an
unexecuted “final” version of the Purchase Agreement to plaintiffs’ counsel.
Defendants’ draft specified a purchase price of $3,820,000, including the additional
cost of the air conditioning, headliner, and finish painting, which were not included in
the LOI’s specifications. (Lyzwinski 1/27/10 Dep. at 67-70).7 Lyzwinski continued to
insist that plaintiffs place the balance of the purchase price in escrow five days before
the scheduled delivery of the helicopter, based on his “previous experience with

6

Defendants argue that plaintiff Gonzalez never asked any lender whether they would
place the funds in escrow five days before delivery, and never actually applied for financing.
(Defts.’ Mem. of Law at 4-5). Gonzalez testified that he may not have submitted a written
application for financing, but he did have discussions about financing the helicopter with at least
one lender, which required a signed copy of the purchase agreement before considering the
transaction. (Gonzalez Dep. at 36-38, 40, 49-51). Plaintiff also testified that, although he may
not have specifically addressed the timing of the escrow with a potential lender for this
transaction, he knew, based on his extensive experience with financing aircrafts, that no lender
would advance the funds for a purchase many days before the closing. (Gonzalez Dep. at 64-70).
7

The price quoted by Lyzwinski also reflected his agreement to provide the purchaser
with a $200,000 discount from the $3,900,000 base price specified in the LOI. (Id.)
7

delayed payment.” (9/18/08 Lyzwinski e-mail, Dkt. No. 41-14).8
The parties never resolved the issues of whether the plaintiffs should pay extra
for the air conditioning, headliner, and finish painting or the timing of the deposit of
the balance of the purchase price with an escrow agent.9 On October 2, 2008,
defendant Lyzwinski sent a “default notice” to plaintiff Gonzalez, stating that because
of plaintiffs’ “non-performance and non-responsiveness,” the $300,000 “has been
forfeited to cover additional expenses to re-market the aircraft and other expenses.”
(Dkt. No. 41-15). On September 24 and November 18, 2008, plaintiffs’ attorney
demanded that defendant Lyzwinski return plaintiffs’ $300,000 deposit. (Gonzalez
Reply Aff. ¶ 15 & Ex. F., Dkt. No. 42-8; Am. Compl. ¶ 31). Plaintiffs commenced
this diversity action in April 2010. (Compl., Dkt. No. 1).
II.

Applicable Law
A.

Summary Judgment

Summary judgment is appropriate where there exists no genuine issue of
material fact and, based on the undisputed facts, the moving party is entitled to

8

The LOI specified that the balance of the purchase price should be deposited into an
escrow account “at least five business days before the scheduled delivery of the Aircraft, unless
specified different [sic] in the Purchase Agreement.” (LOI ¶ 4.3) (emphasis added).
9

There was also an unresolved issue regarding plaintiffs’ obligation under the LOI to pay
another, $100,000 escrow payment to a title company. (LOI ¶ 4.2). Plaintiffs asserts that they
attempted to make this payment in February 2008, but that it was rejected by the escrow agent, as
plaintiffs advised defendants’ representative by telephone. (Gonzalez Dep. at 71-73; Gonzalez
Reply Aff. ¶ 23 & Ex. I, Dkt. No. 42-11). Defendants allege that plaintiffs failed to advise them
of the unsuccessful attempt to make the escrow payment in writing, as required by the LOI. (LOI
¶ 5 at pp. 2-3; Lyzwinski Aff. ¶ 8). Given the courts determination that there are other material
issues of fact that preclude granting plaintiffs’ motion for partial summary judgment, it is not
necessary to determine the materiality of this issue.
8

judgment as a matter of law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263,
272–73 (2d Cir. 2006). “Only disputes over [“material”] 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, 477 U.S. 242, 248 (1986). It must
be apparent that no rational finder of fact could find in favor of the non-moving party
for a court to grant a motion for summary judgment. Gallo v. Prudential Residential
Servs., 22 F.3d 1219, 1224 (2d Cir.1994).
The moving party has the burden to show the absence of disputed material facts
by informing the court of portions of pleadings, depositions, and affidavits which
support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
moving party satisfies its burden, the nonmoving party must move forward with
specific facts showing that there is a genuine issue for trial. Salahuddin v. Goord, 467
F.3d at 273. In that context, the nonmoving party must do more than “simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Electric
Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In determining whether there is a genuine issue of material fact, a court must
resolve all ambiguities, and draw all inferences, against the movant. See United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962); Salahuddin v. Goord, 467 F.3d at 272.
“The district court considering a summary judgment motion . . . must . . . be ‘mindful
of the underlying standards and burdens of proof . . .’” U.S. S.E.C. v. Meltzer, 440 F.
Supp. 2d 179, 187 (E.D.N.Y. 2006) (citations omitted). Where, as here, the plaintiffs
are moving for summary judgment, they bear a much greater initial burden; they “must
9

show that the evidence supporting its claims is so compelling that no reasonable jury
could return a verdict for the defendant.” Id. Accord, McCarthy v. Wachovia Bank,
N.A., 759 F. Supp. 2d 265, 273 (E.D.N.Y. 2011).
B.

New York Contract Law

The LOI (¶ 10) has a New York choice of law provision and the parties agree
that New York law should control in this diversity action. (Pls.’ Mem. of Law at 4-5,
Dkt. No. 29-2; Defts.’ Mem. of Law at 5-9 (citing New York case law)). See Brown v.
Cara, 420 F.3d 148, 152 (2d Cir. 2005). It is also undisputed that the LOI was drafted
by Lyzwinski’s lawyer, so that any ambiguities in that preliminary agreement must be
construed against the defendants. Guardian Life Ins. Co. of Am. v Schaefer, 70
N.Y.2d 888, 890, 524 N.Y.S.2d 377 (N.Y. 1987); Jacobson v Sassower, 66 N.Y.2d
991, 993, 499 N.Y.S.2d 381 (N.Y. 1985).
The New York Court of appeals has articulated the standards for interpreting a
contract that contemplates further negotiations and agreements by the parties:
[A] contract is to be construed in accordance with the parties’ intent, which is
generally discerned from the four corners of the document itself. Consequently,
a written agreement that is complete, clear and unambiguous on its face must be
enforced according to the plain meaning of its terms. . . . Further, [a] condition
precedent is an act or event, other than a lapse of time, which, unless the
condition is excused, must occur before a duty to perform a promise in the
agreement arises.
IDT Corp. v. Tyco Group, 13 N.Y.3d 209, 214, 890 N.Y.S.2d 401 (N.Y. 2009)
(citations and internal quotations omitted). The Second Circuit has summarized the
New York law relating to “preliminary agreements” as follows:

10

Ordinarily, where the parties contemplate further negotiations and the execution
of a formal instrument, a preliminary agreement does not create a binding
contract. . . . In some circumstances, however, preliminary agreements can
create binding obligations. . . . The extent of the obligations created depend on
the preliminary agreement in question, though, in general, binding preliminary
agreements fall into one of two categories. . . . “Type I” preliminary agreements
[are] complete, reflecting a meeting of the minds on all the issues perceived to
require negotiation. . . . . Because it is complete, a Type I preliminary
agreement binds both sides to their ultimate contractual objective. “Type II”
preliminary agreements, by contrast, are binding only to a certain degree,
reflecting agreement on certain major terms, but leav[ing] other terms open for
further negotiation. . . . Type II agreements do[ ] not commit the parties to their
ultimate contractual objective but rather to the obligation to negotiate the open
issues in good faith in an attempt to reach the . . . objective within the agreed
framework.
Brown v. Cara, 420 F.3d at 153 (citing, inter alia, Adjustrite Sys., Inc. v. GAB Bus.
Servs., Inc., 145 F.3d 543, 548 (2d Cir.1998) (internal quotations omitted)).10
III.

Analysis
Counsel for both parties agreed, at oral argument, that the LOI was a Type II

preliminary agreement that required both sides to negotiate in good faith towards the
finalization of a Purchase Agreement. (Defts.’ Mem. of Law at 7-9; Pls.’ Reply Mem.

10

Although there are many New York state court decisions applying this analytical
framework for preliminary agreements, which was first articulated by Judge Leval in Teachers
Ins. & Annuity Ass’n. v. Tribune Co., 670 F. Supp. 491, 498 (S.D.N.Y. 1987), the New York
Court of Appeals, more recently, made the following comment: “While we do not disagree with
the reasoning in federal cases [citing Brown v. Cara and Teachers Insurance], we do not find the
rigid classifications into ‘Types’ useful.” The Court of Appeals stated that, at least in that
particular case, “it is enough to ask . . . whether the agreement contemplated the negotiation of
later agreements and if the consummation of those agreements was a precondition to a party’s
performance.” IDT Corp. v. Tyco Group, 13 N.Y.3d at 213 n. 2. IDT Corp. recognized the
obligation of the parties to the preliminary settlement agreement in that case to negotiate in good
faith towards the completion of the other agreements contemplated in the preliminary agreement.
Id. at 214.
11

of Law at 10, Dkt. No. 42-12).11 The obligation to negotiate in good faith “bar[s] a
party from renouncing the deal, abandoning the negotiations, or insisting on
conditions that do not conform to the preliminary agreement.” Teachers Ins., 670 F.
Supp. at 498. However, merely proposing terms in the ultimate agreement which are
allegedly inconsistent with settlement does not constitute a breach of the preliminary
agreement. IDT Corp. v. Tyco Group, 13 N.Y.3d at 214.
Defendants’ best argument to establish a disputed issue of material fact relating
to plaintiffs’ breach-of-contract claim is the contention that the plaintiffs violated their
duty to negotiate in good faith towards the finalization of a Purchase Agreement.
(Defts.’ Mem. of Law at 7-9).12 Plaintiffs have argued that they were entitled to a
11

Whether the LOI was even a binding Type II agreement is arguably subject to greater
debate. See, e.g., Shann v. Dunk, 84 F.3d 73, 82 n.6 (2d Cir. 1996) (“Although . . . [a] Type II
[agreement] can apply where the parties have not agreed on a term of significance, that would be
so only where the parties clearly manifested a mutual intent to be so bound.”); Henchman’s
Leasing Corp. v. Condren, 87 CIV. 6478, 1989 WL 11440, at *8 (S.D.N.Y. Feb. 8, 1989)
(plaintiff failed to prove, at a bench trial, that the parties’ “agreement in principle” bound them to
negotiate, in good faith, towards the execution of an aircraft lease agreement). However, for the
purpose of resolving this motion, the court will accept the stated position of both parties that they
were bound to negotiate in good faith towards the finalization of a Purchase Agreement.
12

Defendants’ primary argument is that they should be permitted to enforce, against
plaintiffs, the provision in the draft Purchase Agreement, signed by Gonzalez, but not by
Lyzwinski, which stated, inter alia, that the $300,000 deposit was nonrefundable. (Defts.’ Mem.
of Law at 4-7). Defendants relied on the statute of frauds in N.Y.U.C.C. ¶ 2-201, which provides
that a written agreement for the sale of goods (for $500 or more) may be enforced against a party
who signed the agreement, even in the absence of execution by the enforcing party. In deciding
the pending partial motion for summary judgment, it is not necessary for the court to resolve the
merits of defendants’ primary argument. However, the flaw in defendants’ position is that they
must prove an actual meeting of the minds of the parties to the alleged Purchase Agreement
before they may seek enforcement of the only-partially-executed document under the statute of
fraud. As discussed above, Lyzwinski clearly rejected several critical terms of the Purchase
Agreement proposed by Gonzalez, which indicates that there was no mutual assent necessary to
form a binding agreement as to any of its terms. See, e.g., Bazak Intern. Corp. v. Tarrant
Apparel Group, 378 F. Supp. 2d 377, 389 (S.D.N.Y. 2005) (“Even while asserting a contract
12

return of the $300,000 deposit based on the unambiguous language of the LOI (¶ 15),
that it should be returned to the purchaser “[i]n case the contract is not concluded.”
(Pls.’ Mem. of Law at 5-7). However, at oral argument, plaintiffs’ counsel conceded
that, if Gonzalez breached the duty, under the LOI, to negotiate the Purchase
Agreement in good faith, that might put the $300,000 deposit in jeopardy.
Defendants argue, based in part on Gonzalez’s July 2008 e-mails to his lawyer
(Dkt. No. 41-6), that plaintiffs demanded modifications of the LOI (and the Purchase
Agreement concluded in connection with the earlier, completed sale of another
helicopter), in order to provide a pretext for not completing the purchase of the second
helicopter. Although Gonzalez has offered an innocent explanation for that e-mail
chain, those communications create a factual issue regarding his good faith in the
negotiation of the Purchase Agreement.
Defendants also contend that Gonzalez refused to escrow the balance of the
purchase price five days before delivery of the helicopter, although he apparently
agreed to the advance escrow payment in connection with the first helicopter sale.
Lyzwinski argues that the explanation given by plaintiffs’ counsel, that the lender

under UCC Section 2-201(2), parties must still demonstrate the element of mutual assent”)
(citation omitted); AFP Imaging Corp. v. Philips Medizin Systeme Unternehmensbereich, 92
CIV. 6211, 1994 WL 652510, at *4-5 (S.D.N.Y. Nov. 17, 1994) (“The peculiar rules of the
Statute of Frauds merely require that to be put in writing which may be left to parol in other
cases. The fundamental question . . . is whether there was any contract; any actual meeting of
minds on all the material elements of the agreement. If a material element of a contemplated
contract is left for future negotiations, there is no contract enforcible under the Statute of Frauds
or otherwise.”) (citing, inter alia, Kleinschmidt Div. of SCM Corp. v. Futuronics Corp., 41
N.Y.2d 972, 973, 395 N.Y.S. 2d 151 (N.Y. 1977) (no contract under the Uniform Commercial
Code where dispute over material terms manifested a lack of contractual intent)).
13

financing the second purchase was unwilling to escrow the funds in advance, was
disingenuous because Gonzalez later acknowledged that he may not have ever raised
this issue with any lender. Gonzalez explained that his position on the advance
escrow provision changed because the second helicopter purchase, unlike the first
transaction, was financed; and that, in his experience with prior financed transactions,
no lender would escrow the purchase funds many days before closing. While the LOI
(¶ 4.3) contemplated negotiation on the escrow provisions in the Purchase Agreement,
defendants raise an issue of fact as to whether Gonzalez negotiated in good faith
regarding this provision.
Defendants also argue that plaintiffs failed to negotiate in good faith because
they insisted on additional features to the helicopter that were not within the
specifications in the LOI; plaintiffs refused to pay any additional amount for the air
conditioning, headliner, and finish painting, even though Gonzalez knew, as a result
of the first helicopter transaction, that these features would cost in excess of $100,000.
Plaintiff Gonzalez argues that he insisted on getting these additional features for no
additional charge because defendants’ sales agents represented that the helicopter
offered for sale would include such finishing features. Although Lyzwinski agreed to
negotiate about adding additional features to the helicopter, he raises issues of fact as
to whether Gonzalez negotiated in bad faith when he allegedly insisted on free
“extras” not listed in the specifications of the LOI.
Plaintiffs have demanded summary judgment in the amount of their $300,000
deposit, plus interest. Defendants’ counterclaim (Dkt. No. 22 at 6), asserting that
14

plaintiffs negotiated in bad faith, seeks lost profits from the helicopter sale, as well as
other damages. If defendants were to succeed on their counterclaim, they would
probably not be entitled to recover lost profits, but might be entitled to reimbursement,
perhaps out of plaintiffs’ deposit, of any costs incurred in connection with the failed
transaction. L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 431 (2d Cir. 2011)
(Although lost profits are not available for breach of contract for failure to negotiate in
good faith, “out-of-pocket costs incurred in the course of good faith partial
performance are appropriate”) (citations omitted). Hence, there are also issues of
material facts with respect to the appropriate damages in this case.
IV.

Conclusion
For the reasons stated above, the court concludes that the existence of genuine

issues of material fact with respect to plaintiffs’ breach of contract claim precludes
summary judgment. Based on that conclusion, the court need not address other issues
raised by the parties in connection with the partial summary judgment motion,
including plaintiffs’ argument that the corporate veil of defendant SWA should be
pierced to make Lyzwinski personally liable for any damages against SWA.13

13

Piercing the corporate veil requires a showing that: “(1) the owners exercised complete
domination of the corporation in respect to the transaction attacked; and (2) that such domination
was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury.”
Morris v. N.Y. State Dep’t of Taxation & Finance, 82 N.Y.2d 135, 141, 603 N.Y.S.2d 807 (N.Y.
1993). The question of “[w]hether the corporate veil should be pierced requires a fact specific
inquiry . . . .” Bravado Intern. Group Merchandising Services, Inc. v. Ninna, Inc., 655 F. Supp.
2d 177, 194 (E.D.N.Y. 2009). A “fact-laden claim to pierce the corporate veil is particularly
unsuited for resolution on summary judgment.” Forum Ins. Co. v Texarkoma Transp. Co., 229
A.D.2d 341, 342, 645 N.Y.S.2d 786 (1st Dep’t 1996). Accord, Donald Dean & Sons, Inc. v.
Xonitek Systems Corp., 656 F. Supp. 2d 314, 321-22 (N.D.N.Y. 2009).
15

WHEREFORE, it is ORDERED that plaintiffs’ partial motion for summary
judgment (Dkt. No. 29) is DENIED.

Dated: June 22, 2012

16