D&G Group, S.R.I. v. H.A. Import USA et al

Filing 36

OPINION re: 24 MOTION for Summary Judgment . filed by D&G Group, S.R.I. The Plaintiff's motion for summary judgment against H.A. Import is granted. Submit judgment on notice. The Plaintiff's motion for summary judgment against Morello is denied. It is so ordered. (As further set forth in this Order), H.A. Import USA terminated. (Signed by Judge Robert W. Sweet on 5/26/2016) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

______________________________ \ ________ x
D&G GROUP, S.R.I.,

'

Plaintiff,
-against-

14 Civ. 2850
OPINION

H.A. IMPORTS USA, INC. and PASQUALE
MORELLO, individually,
Defendants.

----------------------------------------x
A P P E A RA N C E S:

Attorneys for Plaintiff
Law Off ice of Costantino Fragale
575 White Plains Road
Eastchester, NY 10709
By:
Constantino Fragale, Esq.

Pro Se
PASQUALE MORELLO
23 Beverly Court
Northport, NY 11768

USDC SDI\!1Y
DOCUMENT

ELECTRONICAL~Y FILED

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·

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DOC #: ----1-~r=ort"-'-t--tt~ 1\
DATE FILED:
I!

Sweet, D.J.

D&G Group, S. R. I.

( "D&G" or the "Plaintiff") has moved

pursuant to Rule 56, F. R. Civ. P. for summary judgment against
defendants H.A. Imports USA,
Morello ("Morello")

Inc.

("H.A. Imports") and Pasquale

(collectively, the "Defendants") . As set

forth below, the motion is granted in part, and denied in part.

Prior Proceedings

The complaint alleging non-payment for goods sold and
delivered was filed April 22, 2014 and assigned to the Honorable
Thomas P. Griesa. Morello filed his answer pro se on July 31,
2014. H.A. Imports was served on January 1, 2015 following a
scheduling order filed on December 17, 2014 by the Honorable
Michael H. Dolinger.

A certificate of default as to H.A. Imports was
entered on January 22, 2015. Discovery was completed and
dispositive motions were ordered to be filed by July 1, 2015.
The instant motion was filed on that date. The affidavit in
opposition was filed by Morello on November 17, 2015.

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The action was reassigned on January 15, 2016, and the
motion was marked submitted on February 4, 2016.

The Facts

The Plaintiff's Rule 56.1 Statement of

Undispu~ed

Facts set forth its version of the transaction which involved
the shipment of goods from D&G in Italy to the Defendants in New
York for part payment, and alleges that the contract at issue
was entered into by Morello individually.

(Pltf. Statement

~

9).

Morello, pro se, has not filed a statement as required
by Local Rule 56.l but his affidavit of November 17, 2015 denied
his individual liability and asserts that he was acting solely
as an agent of H.A. Imports, that he did not make any part
payment nor accepted any of the goods, and that the goods were
rejected.

The Summary Judgment Standard

Summary judgment is appropriate only where "there is
no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law." Fed. R.
Ci v . P. 56(c). A dispute is "genuine" if "the evidence is such

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that a reasonable jury could return a verd ict for the nonmoving
party." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248

(1986). The relevant inquiry on application for summary judgment
is "whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Id. at 251-52. A
court is not charged with weighing the evidence and determining
its truth, but with determining whether there is a genuine issue
for trial. Westinghouse Elec. Corp. v. N.Y. City Transit Auth.,
735 F. Supp. 1205, 1212 (S.D.N.Y. 1990)

(quoting Anderson, 477

U.S. at 249). "[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact." Anderson,
477 U.S. at 247-48 (emphasis in original).

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Summary Judgment against H.A. Import is Granted

The Plaintiff has obtained a certificate of default by
H.A. Import which has not appeared or opposed the instant
motion. Summary judgment is appropriate.

Summary Judgment against Morello is Denied

The affidavit of Morello has disputed the Plaint iff's
Statement of Undisputed Facts with respect to his role in the
transaction, acceptance of the goods, payment and the condition
of the goods. This factual dispute bars summary judgment. KSW

Mechanical Services v. Johnson Controls, Inc.,

992 F.Supp.2d

135, 142-147 (E.D.N.Y. 2014) ; RIJ Pharmaceutical Corp. v. Iva x

Pharmaceuticals, Inc.,

322 F.Supp.2d 406, 413

Sherkate Sahami Khass Rapol
&

(S.D.N.Y. 2004);

(Rapol Const. Co.) v . Henry R. Jahn

Son, Inc., 701 F.2d 1049, 1051-52 (2d Cir. 1983).

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~

. .

.

Conclusion

The Plaintiff's motion for summary judgment against
H.A. Import is granted. Submit judgment on notice.

The Plaintiff's motion for summary judgment against
Morel l o is denied.

It is so ordered .

May*

New York, NY
2016

U.S.D.J.

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