Hitachi Data Systems Credit Corporation
Filing
126
OPINION & ORDER re: 86 MOTION for Summary Judgment and Memorandum of Law in Support. filed by Hitachi Vantara Credit Corporation. Because the Lease Agreement's terms operate to require Precision's payments under any and al l circumstances, Hitachi's motion for summary judgment is granted. The parties are directed to confer regarding the amount of damages and to submit a proposed judgment by September 13, 2019. SO ORDERED. (Signed by Judge Sidney H. Stein on 8/13/2019) (kv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HITACHI DATA SYSTEMS CREDIT
CORPORATION,
17‐Cv‐6851 (SHS)
Plaintiff,
v.
OPINION & ORDER
PRECISION DISCOVERY, INC.,
Defendant.
SIDNEY H. STEIN, U.S. District Judge.
This contract dispute centers on defendant Precision Discovery, Inc.’s (“Precision”)
failure to pay plaintiff Hitachi Data Systems Credit Corporation (“Hitachi”) for leased
data storage equipment. Because defendant was obligated to pay for the delivered
equipment “come hell or high water” under the lease’s terms, plaintiff is entitled to
summary judgment.
I.
BACKGROUND
In January 2012, Hitachi and Precision entered into a lease (“Lease Agreement”) for
Precision to rent equipment. (Def.’s Local Civil Rule 56.1 Response and Counterstatement
(“Def.’s 56.1”) ¶ 1; Decl. of Leon Tagawa dated Jan. 22, 2019 ¶ 3; Ex. A to Tagawa Decl.
(“Lease Agreement”).) Under the Lease Agreement, vendors—Hitachi Vantara
Corporation (“Hitachi Vantara”) or third parties—would directly supply the equipment.
(Id. §§ 2, 17.) The Lease Agreement also provided that the parties would outline the
particular equipment and rental prices in subsequent lease schedules. (Def.’s 56.1 ¶ 3.)
Those schedules constituted independent contracts and incorporated the terms of the
original Lease Agreement. (Id.) Three of those terms are important to highlight.
First, the Lease Agreement specified that as the lessee, Precision’s “obligations to pay
all amounts due are absolute and unconditional and shall not be subject to any abatement,
reduction, set off, defense, counterclaim, interruption, deferment or recoupment for any
reason whatsoever.” (Lease Agreement ¶ 5.) Such language forms a quintessential “hell
or high water” clause—a provision in many equipment leases that obligates the lessee to
“make payments regardless of defective performance on the part of the lessor, that is,
‘come hell or high water.’” ReliaStar Life Ins. Co. of N.Y. v. Home Depot U.S.A., Inc., 570 F.3d
513, 519 (2d Cir. 2009); Wells Fargo Bank, N.A. v. BrooksAmerica Mortg. Corp., 419 F.3d 107,
110 (2d Cir. 2005); see, e.g., ReliaStar, 570 F.3d at 516; Wells Fargo Bank Nw., N.A. v. Taca
Int’l Airlines, S.A., 247 F. Supp. 2d 352, 360–61 (S.D.N.Y. 2002).
Second, the Lease Agreement expressly disclaimed any representations by the lessor,
Hitachi:
LESSOR HAS NOT MADE, AND DOES NOT HEREBY MAKE, ANY
REPRESENTATION
OR
WARRANTY
AS
TO
THE
TITLE,
MERCHANTABILITY,
PERFORMANCE,
CONDITION,
QUALITY,
DESCRIPTION, DURABILITY, FITNESS OR SUITABILITY FOR PURPOSE BY
LESSEE OR ANY OTHER PERSON OF ANY OF THE EQUIPMENT, OR
COMPLIANCE WITH REQUIREMENTS OF ANY GOVERNMENTAL BODY
OF ANY EQUIPMENT IN ANY RESPECT, OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE EQUIPMENT.
LESSEE LEASES THE EQUIPMENT ‘AS‐IS’ AND ALL OTHER EXPRESS OR
IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR
CONDITION OF MERCHANTABILITY, DESIGN, CAPACITY, CONDITION
OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE,
NON‐INFRINGEMENT ARE EXCLUDED TO THE MAXIMUM EXTENT
PERMITTED BY LAW.
(Lease Agreement § 6.3.)
The Lease Agreement also contained a standard merger clause: “This
L[ease ]A[greement] and each Schedule are the entire agreement relating to the subject
matter of such Schedule. All other oral or written communications, understandings,
proposals, representations and warranties are by agreement, excluded and are of no force
or effect (to the extent permitted at law).” (Id. § 16.3(j).)
At issue in this case is a lease schedule signed by the parties in September 2016: Lease
Schedule J. (Def.’s 56.1 ¶ 5; Tagawa Decl. ¶ 7; Ex. B to Tagawa Decl., Ex. A to Aff. of Jason
Piper dated June 30, 2018 (“Schedule J”).) That schedule provided for the two‐year rental
of a piece of equipment known as the Virtual Storage Platform G1000, as well as Hitachi
Content Platform Anywhere Product Sales and Brocade Platform Sales. (Def.’s 56.1 ¶ 9;
Schedule J at 1–4.) In exchange for the leased equipment, Precision owed Hitachi $103,500
monthly. (Id. at 4.) Schedule J incorporated the terms of the Lease Agreement and
contained its own integration clause: “LESSEE AGREES THAT THE SCHEDULE AND
LEASE AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF
THE LEASE.” (Id. at 1, 4.)
Howard Holton, Precision’s former Chief Information Officer (CIO), signed Schedule
J on behalf of his employer. (Id. at 4; Piper Aff. ¶ 2.) Cold Creek Solutions, Inc. (“Cold
Creek”) sent an invoice to Hitachi for the equipment outlined in Schedule J. (Ex. C to
Piper Aff.) In addition to prepaying the first and last months’ rent, Precision made four
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additional lease payments. (Def.’s 56.1 ¶ 19.) After March 2017, however, Precision
stopped paying Hitachi. (Id. ¶¶ 19–20.)
Jason Piper, Precision’s current Information Technology Director who previously
worked directly under Holton (Piper Aff. ¶¶ 1–2), alleges the following: Precision
discovered that Holton had been secretly working in concert with employees at Hitachi
Vantara and Cold Creek. Despite Holton’s claims that the G1000 was necessary to meet
Precision’s data storage needs, the equipment was wholly inadequate and outdated. (Id.
¶¶ 12–13, 17, 19, 21.) Holton had represented to his staff that the G1000 would be
provided at no additional cost to Precision. (Id. ¶ 14.) But this too was inaccurate. (Id. ¶¶
20, 23.) Other Precision employees lacked access to the documentation of their employer’s
dealings with these companies to dispute Holton’s claims that the Schedule J equipment
was necessary and free. (Id. ¶ 15.)
Holton engaged in such misconduct, Precision asserts, because of his improper
relationships with employees at Hitachi Vantara and Cold Creek. These employees
allegedly took Holton on lavish shopping sprees, dining out, high‐profile sporting events,
and a joint trip. (Id. ¶¶ 3–8.) Cold Creek even made Piper a consultant and provided him
with business cards. (Id. ¶¶ 9–11.)
In September 2017, Hitachi sued Precision for breach of contract. Precision responded
with counterclaims against Hitachi and third‐party claims against Hitachi Vantara and
Cold Creek—all of which the Court dismissed in September 2018. Hitachi Data Sys. Credit
Corp. v. Precision Discovery, Inc., 331 F. Supp. 3d 130 (S.D.N.Y. 2018) (“Hitachi I”). All that
remained was Hitachi’s original claim for breach of contract.
Immediately before the close of discovery, Hitachi moved for summary judgment. At
first at Precision’s, and later at both parties’, request, the Court twice allowed additional
time to complete discovery. Now before the Court are Hitachi’s motion for summary
judgment as well as its three motions to strike materials filed by Precision in opposition
to plaintiff’s summary judgment motion.
II. LEGAL STANDARD
Summary judgment is appropriate if, drawing all inferences in favor of Precision as
the non‐moving party, there exists no genuine dispute as to any material fact. Soto v.
Gaudett, 862 F.3d 148, 157 (2d Cir. 2017). A fact is only material if it has the potential to
impact the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Saleem v. Corp. Transp. Grp., Ltd., 854 F.3d 131, 148 (2d Cir. 2017). The Court applies New
York law, which the parties’ briefs treat as controlling. See Krumme v. WestPoint Stevens
Inc., 238 F.3d 133, 138 (2d Cir. 2000); see also Alphonse Hotel Corp. v. Tran, 828 F.3d 146, 152
(2d Cir. 2016).
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III. MOTIONS TO STRIKE
Hitachi seeks to strike three documents filed by Precision in opposition to plaintiff’s
motion for summary judgment: two purported affidavits and defendant’s response and
counterstatement to plaintiff’s 56.1 Statement. Pursuant to Rule 56(c)(2), the Court deems
Hitachi’s motions to strike objections to the admissibility of the three identified
documents. See 2010 Advisory Comm. Note to Fed. R. Civ. P. 56(c)(2) (“There is no need
to make a separate motion to strike.”).
“Because evidence inadmissible at trial is insufficient to create a genuine dispute of
material fact, the Court need not engage in” a separate line‐by‐line analysis of Hitachi’s
objections. Codename Enters., Inc. v. Fremantlemedia N. Am., Inc., No. 16 Civ. 1267, 2018 WL
3407709, at *4 (S.D.N.Y. Jan. 12, 2018); Mergers & Acquisition Servs., Inc. v. Eli Global, LLC,
No. 1:15‐cv‐3723, 2017 WL 1157132, at *16 (S.D.N.Y. Mar. 27, 2017). The Court has
considered those objections when evaluating the evidence submitted in connection with
the motion for summary judgment. While Hitachi’s motions to strike are denied as a
formal matter, the Court has not relied on—and in fact has disregarded—any evidence
that was not supported or that would not be admissible at trial. See Nodoushani v. S. Conn.
State Univ., 507 F. App’x 79, 80 (2d Cir. 2013) (recognizing district courts’ discretion to
merely disregard, rather than strike, inadmissible portions of evidence at summary
judgment); Pacenza v. IBM Corp., 363 F. App’x 128, 130 (2d Cir. 2010) (same).
IV. MOTION FOR SUMMARY JUDGMENT
Hitachi believes Precision’s duty to make lease payments was inescapable in light of
the Lease Agreement’s “hell or high water” clause. Again, that term specified that
Precision’s responsibility for “all amounts due are absolute and unconditional and shall
not be subject to any . . . defense, . . . for any reason whatsoever.” (Lease Agreement ¶ 5.)
Courts have consistently found such clauses enforceable, unambiguous, and a basis for
summary judgment. See ReliaStar, 570 F.3d at 519; BrooksAmerica Mortg. Corp., 419 F.3d at
110; see, e.g., id.; Xerox Corp. v. Graphic Mgmt. Servs. Inc., 959 F. Supp. 2d 311, 318 (W.D.N.Y.
2013); Wells Fargo, 247 F. Supp. 2d at 360–61; Window Headquarters, Inc. v. MAI Basic Four,
Inc., Nos. 91 Civ. 1816, 93 Civ. 4135, 92 Civ. 5283, 1994 WL 673519, at *11–*12, *17 (S.D.N.Y.
Dec. 1, 1994).
Moreover, the Lease Agreement’s incorporation of the New York Uniform
Commercial Code’s “hell or high water” provision provides an independent basis for
summary judgment. The parties agreed that the Lease Agreement would be treated as a
“finance lease” under the UCC. (Lease Agreement § 16.3(m) (“Lessor and Lessee agree
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that the Lease is a ‘finance lease’ as defined in Article 2A of the UCC . . . .”).)1 For such
non‐consumer finance leases, the UCC “extends the benefits of the classic ‘hell or high
water’ clause.” N.Y. U.C.C. Law § 2‐A‐407 Off. Cmt. § 1; see id. § 2‐A‐103(1)(e), (g)
(defining consumer and finance leases). Pursuant to this “self‐executing” section, “the
lessee’s promises under the lease contract become irrevocable and independent upon the
lessee’s acceptance of the goods.” Id. § 2‐A‐407(1) & Off. Cmt. § 1. The lessee’s obligations
are “effective and enforceable between the parties” and are “not subject to cancellation,
termination, modification, repudiation, excuse, or substitution without the consent of the
party to whom the promise runs.” Id. § 2‐A‐407(2)(a)–(b).
Defendant offers a two‐part response. First, Precision contends that its contractual
obligation to pay Hitachi never went into effect because the equipment leased in Schedule
J was never installed. Second, Precision maintains that Holton’s alleged collusion with
Hitachi Vantara and Cold Creek amounts to fraud, which constitutes an exception to the
otherwise enforceable “hell or high water” clause. Neither argument provides defendant
the safe harbor it seeks.
A. Precision Became Obligated to Make Lease Payments Even Though the
Equipment Was Never Installed.
Precision first disputes that it ever “accepted” the G1000, thus never triggering its
obligation to make lease payments per the contract. Under the Lease Agreement,
Precision’s “obligation to pay Rent” began on the “Rent Commencement Date,” which
was defined in relation to the “Installation Date.” (Lease Agreement §§ 7.1, 17; see also id.
§ 1 (providing that the initial term of schedules “shall begin on the Installation Date”).)
In turn, “Installation Date” was defined as “the date the Equipment is installed at Lessee’s
site.” (Id. § 17.) Precision was supposed to “examine the Equipment immediately upon
delivery” and “execute an Installation Certificate on the date the Equipment [wa]s
installed.” (Id. § 4.) Alternatively, “[i]f an executed Installation Certificate [wa]s not
delivered to Lessor on the date the Equipment [wa]s installed at the Equipment location,
the Installation Date shall be deemed to be, and Lessee shall be deemed to have accepted
the Equipment on such date Vendor makes the Equipment available to Lessee.” (Id.)
Precision maintains that because the equipment was never installed nor made available,
there remains no “Installation Date” to trigger a “Rent Commencement Date.”
Although Holton executed an Installation Certificate on September 21, 2016 (Ex. D to
Piper Aff. at 3), Precision argues that this date cannot be deemed the Installation Date
because the equipment was never actually installed. When the G1000 was delivered to
Such consensus is sufficient for finance lease treatment, even if the contract would not have otherwise met
the definition for finance leases. N.Y. U.C.C. Law § 2‐A‐103(1)(g) Off. Cmt.; see Xerox Corp. v. JCTB Inc., No.
6:18‐cv‐06154, 2018 WL 5776423, at *5 (W.D.N.Y. Nov. 2, 2018); Xerox, 959 F. Supp. 2d at 318.
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Precision’s data center, “it was sent to a general staging area, where it remained
unplugged and unconnected to any other piece of equipment for 48 days.” (Piper Aff. ¶¶
16, 18.) Despite being required to do so, Precision says, Hitachi Vantara never installed
the G1000. (Id. ¶¶ 25—26.) Nevertheless, on September 21, Holton completed an
Installation Certificate, suggesting an installation occurred. (Id. ¶ 27.) Yet the Installation
Date Holton recorded was not September 21, as would be logical, but the next day:
September 22, 2016. (Id. ¶ 27; Ex. D to Piper Aff. at 1.) In Precision’s view, this evidence
is sufficient to raise a question whether the G1000 was installed and whether September
22, 2016, could be considered an Installation Date that in turn would prompt a Rent
Commencement Date.
Even accepting defendant’s argument thus far, Precision overlooks the alternative
approach to calculate an Installation Date: when the equipment was available to and
accepted by Precision. (Lease Agreement § 4.) Consistent with the Lease Agreement’s
terms, the UCC makes the irrevocability of lessee’s promises under the lease contingent
on lessee’s acceptance of the leased goods. N.Y. U.C.C. Law § 2‐A‐407(1). Precision
contends that installation is key to availability and acceptance, citing the hypothetical
example given in the UCC’s Official Comment. Id. Off. Cmt. § 4 (“After installation by
[goods manufacturer] and testing by [lessee], [lessee] accepts the goods by signing a
certificate of delivery and acceptance, a copy of which is sent by [lessee] to [lessor] and
[manufacturer].”).
Yet, this explanatory example does not trump the UCC’s clear definition for
acceptance: “Acceptance of goods occurs after the lessee has had a reasonable
opportunity to inspect the goods” and signifies or acts as if the goods are conforming or
will be retained despite nonconformity, or fails to effectively reject the goods. N.Y. U.C.C.
Law § 2‐A‐515(1)(a)–(b); see Netrix Leasing, LLC v. K.S. Telecom, Inc., No. 00‐CIV‐3375, 2001
WL 228362, at *5 (S.D.N.Y. Mar. 7, 2001). “Rejection of goods is ineffective unless it is
within a reasonable time after tender or delivery of the goods and the lessee seasonably
notifies the lessor.” N.Y. U.C.C. Law § 2‐A‐509(2); see Netrix Leasing, 2001 WL 228362, at
*5.
Here, defendant retained the equipment and made lease payments for multiple
months. The record does not reflect that Precision indicated to Hitachi that it would be
rejecting the equipment, which defendant appears to still have on its premises. Precision
does not point to a requirement in the Lease Agreement or Schedule J that the equipment
was not considered “available” until installed. Thus, Precision’s failure to reject the G1000
in a timely manner amounts to acceptance under the UCC. See Netrix Leasing, 2001 WL
228362, at *5 (finding that the lessee had accepted equipment, despite its complaints,
where it never informed the lessor that it was rejecting the equipment, never attempted
to return it, and fully paid some months’ rent); see also Direct Capital Corp. v. New ABI Inc.,
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13 Misc. 3d 1151, 1165 (Kings Cty. 2006) (“Having accepted and retained the equipment
even to this day despite plaintiff’s demands for possession, defendants are bound to the
terms of the lease.”). Regardless of whether the equipment was installed, Precision’s
inaction rendered it responsible for lease payments.
B. Holton’s Alleged Fraud Does Not Render the Lease Agreement Unenforceable
Because Precision Disclaimed Reliance on Any Representations.
Precision’s second argument to defeat summary judgment is that the contract is void
and unenforceable because it was procured by Holton’s fraudulent misconduct—
allegedly accepting gifts, trips, meals, and outings from Hitachi Vantara and Cold Creek
in exchange for equipment leases that lined their pockets but provided no benefit to
Precision. Although a “hell or high water” clause—either included as an express
contractual term or incorporated via the UCC—typically “becomes irrevocable and
noncancelable and requires the lessee to make payments irrespective of any defects in
performance,” an exception to the clause’s enforceability exists in the case of fraud. Direct
Capital Corp., 13 Misc. 3d at 1164; accord Xerox, 2018 WL 5776423, at *5; see also N.Y. U.C.C.
Law § 2‐A‐407 Off. Cmt. § 5; Sterling Nat’l Bank v. Chang, 10 Misc. 3d 131(A), at *1 (1st
Dep’t Dec. 7, 2005).
Nevertheless, Precision’s allegations of misconduct fail to raise a material factual
dispute, because defendant’s fraud‐based defenses carry the same elements as its
previously‐dismissed counterclaims. In Hitachi I, the Court dismissed, inter alia,
Precision’s counterclaims for fraudulent inducement and fraudulent misrepresentation
for failure to state claims. 331 F. Supp. 3d at 148–50. The Court noted that the elements of
both fraud claims included the defrauded party’s reliance on a false material
representation. Id. at 148. Yet, the Lease Agreement expressly disclaimed the existence of
“ANY REPRESENTATION OR WARRANTY AS TO THE . . . SUITABILITY FOR
PURPOSE BY LESSEE . . . OR ANY OTHER REPRESENTATION OR WARRANTY WITH
RESPECT TO THE EQUIPMENT.” (Lease Agreement § 6.3 (emphasis added).) At the
motion to dismiss stage, this contractual term precluded Precision from stating a fraud‐
based counterclaim. Id. at 148–49.
So too here, the Lease Agreement’s specific disclaimer of reliance on
representations—operating in conjunction with the Lease Agreement and Schedule J’s
merger clauses, which excluded any representations not in those two documents (Lease
Agreement § 16.3(j); Schedule J at 4)—prevents Precision from proving a fraud defense.
This is because fraud‐based affirmative defenses similarly include defendant’s reliance
on a false representation as elements. See, e.g., 720 Lex Acquisition LLC v. Guess? Retail, Inc.,
No. 09 Civ. 7199, 2011 WL 5039780, at *5 (S.D.N.Y. Oct. 21, 2011) (requiring as elements
for a fraud in the inducement defense “a false representation of a material fact upon
which the party seeking to avoid the contract justifiably relied to their detriment in
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entering into the agreement"); Woo v. Times Enter., Inc., No. 98 CIV. 9171, 2000 WL 297114,
at *7 (S.D.N.Y. Mar. 22, 2000) ("One element of the affirmative defense of fraudulent
inducement is that the defendant relied on the misrepresentation."); see also Minuteman
Press Int'l, Inc. v. Matthews, 232 F. Supp. 2d 11, 17 (E.D.N.Y. 2002) (dismissing a
corresponding affirmative defense along with defendant's fraudulent inducement
counterclaim because "what is said as to counterclaims is equally applicable to the
affirmative defenses").
Defendant argues that the analysis for its counterclaims meaningfully differs from
the analysis for its defenses because only on the former does Precision carry the burden
of proof. But "one who relies upon an affirmative defense to defeat an otherwise
meritorious motion for summary judgment must adduce evidence which, viewed in the
light most favorable to and drawing all reasonable inferences in favor of the non-moving
party, would permit judgment for the non-moving party on the basis of that defense."
Frankel v. ICD Holdings S.A., 930 F. Supp. 54, 65 (S.D.N.Y. 1996). Although a plaintiff
seeking summary judgment consistent with a "hell or high water" clause must show that
a fraud defense fails as a matter of law, Sterling Nat'l Bank v. Kings Manor Estates, LLC, 9
Misc. 3d 1116(A), at *4 (N.Y. Cty. Oct. 6, 2005), Hitachi has done so. Numerous courtsin addition to Hitachi I-have held that fraud-based claims and defenses are barred by
nearly identical "hell or high water" clauses and other contractual terms as are present
here. E.g., Xerox, 959 F. Supp. 2d at 319; Wells Fargo, 247 F. Supp. 2d at 370-71; Window
Headquarters, 1994 WL 673519, at *14.
In sum, the business committed itself to making lease payments without exception.
V. CONCLUSION
Because the Lease Agreement's terms operate to require Precision's payments under
any and all circumstances, Hitachi's motion for summary judgment is granted. The
parties are directed to confer regarding the amount of damages and to submit a proposed
judgment by September 13, 2019.
Dated: New York, New York
August 13, 2019
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