Xerox Corporation v. JCTB Incorporated et al
Filing
23
DECISION AND ORDER granting 17 Motion for Summary Judgment. Defendants counterclaims are dismissed with prejudice. Plaintiff is granted summary judgment on Counts I through III of the Complaint and is entitled to a total compensatory damages award of $806,019.26 on those counts. Declaratory judgment is awarded to Plaintiff on Count IV, entitling it to immediately retake possession of the Leased Equipment, which is identified with particularity in the Complaint. By separate application, P laintiff shall submit proof of its reasonable attorneys fees and costs. Thereafter, Defendants will have thirty (30) days to file any objections to Plaintiffs request. The Clerk of Court is directed to close this case. Signed by Hon. Michael A. Telesca on 11/2/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
XEROX CORPORATION,
Plaintiff,
No. 6:18-cv-06154-MAT
DECISION AND ORDER
-vsJCTB INCORPORATED, SHIRLEY BUI, and
JIMMY CAUDILLO a/k/a JAIME CAUDILLO,
Defendants.
I.
Introduction
This is an action for breach of contract brought by Xerox
Corporation (“Xerox” or “Plaintiff”) against JCTB Incorporated
(“JCTB”), Shirley Bui (“Bui”), and Jimmy Caudillo, a/k/a Jaime
Caudillo
(“Caudillo”)
(collectively,
“Defendants”).
Plaintiff
asserts four counts in the Complaint: (1) breach of an equipment
finance
lease
agreement;
(2)
breach
of
a
promissory
note;
(3) breach of a guaranty agreement; and (4) a declaration entitling
it to retake possession of the leased equipment. The Court has
jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(1)
based on the complete diversity of citizenship and the amount in
controversy.
Presently before the Court is Plaintiff’s pre-discovery Motion
for Summary Judgment and to Dismiss Counterclaims (Docket Nos. 17,
17-1, 17-2 & 17-3). Defendants filed a Memorandum of Law in
Opposition (Docket No. 19) and a Declaration (Docket No. 20).
Plaintiff filed a Reply (Docket No. 21). The motion was fully
submitted without oral argument on August 2, 2018. For the reasons
discussed below, Plaintiff’s motion is granted in its entirety.
II.
Factual Background
The
Court’s
summary
of
the
salient
facts
is
drawn
from
Plaintiff’s Statement of Undisputed Material Facts (Docket No. 171) and the evidence in admissible form cited therein, including the
Affidavit of Janet Atkinson (“Atkinson Aff.”) (Docket No. 17-2) and
the attached exhibits (“Ex.”) (Id.).
A.
The Finance Lease
On or about April 29, 2015, Plaintiff and JCTB entered into an
equipment finance lease agreement (“the Finance Lease”) pursuant to
which JCTB leased four pieces of printing equipment (“the Leased
Equipment”). See Atkinson Aff., ¶ 3 & Ex. A (Finance Lease). JCTB
agreed to remit to Plaintiff (1) monthly minimum lease payments,
along with (2) payments of print charges to be calculated based on
the number of prints produced by the Leased Equipment during each
month of the lease term.
The Finance Lease stated that JCTB’s obligation to make all
payments
IS ABSOLUTE AND UNCONDITIONAL AND NOT SUBJECT TO DELAY,
REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM OR RECOUPMENT
FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF XEROX’S
PERFORMANCE OF ITS OBLIGATIONS [T]HEREUNDER.
Atkinson Aff., Ex. A, ¶ 24 (all capital letters in original).
Identifying itself as “‘finance lease’ under Article 2A of the
Uniform Commercial Code [(“UCC”)],” the Finance Lease further
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provided that JCTB waived any implied warranty of fitness for a
particular purpose and all “rights and remedies as a lessee under
Article 2A” of the UCC. Id., Ex. A, ¶ 30.
B.
The Modification Agreement
A little over a year and half later, Plaintiff and Defendants
executed
an
(“Modification
agreement
Agreement”)
modifying
effective
the
Finance
December
15,
Agreement
2016.
See
Atkinson Aff. ¶ 6 & Ex. B (Modification Agreement). Pursuant to
this agreement, (1) JCTB acknowledged its default and resulting
indebtedness to Plaintiff in the amount of $255,299.66 as of
December 15, 2016; (2) JCTB agreed to execute a promissory note for
a portion of its outstanding debt, plus interest; (3) Plaintiff
agreed to modify the term of the Finance Lease and the amount of
Defendants’ future monthly minimum payments; and (4) Bui and
Caudillo agreed to be guarantors of JCTB’s payment obligations.
See Atkinson Aff., Ex. B at pp. 1-3 & ¶ 5. All terms of the Finance
Lease, apart from those expressly modified by the Modification
Agreement, “remain[ed] in full force and effect[.]” Id., Ex. B,
¶¶ 2, 7(h).
In addition, the Modification Agreement provided that “upon
the occurrence of an Event of Default, Xerox shall immediately be
entitled to pursue its rights and remedies under [the Finance
Lease, as modified] and applicable law without notice.” Atkinson
Aff., Ex. B, ¶ 4. The Modification Agreement defined an “Event of
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Default” as “any event or circumstance that is continuing and that,
with the giving of notice, or the passage of time, or both, would
constitute a default, breach or an event of default” under the
Finance Lease, the Modification Agreement, or the Promissory Note.
Atkinson Aff., Ex. B, ¶ 1(c). The Finance Lease specifically
provided that JCTB will be in default if either “(1) Xerox does not
receive any payment within 15 days after the date it is due, or
(2) [JCTB] breach[es] any other obligation in this or any other
agreement with Xerox.” Id., Ex. A, ¶ 22. The Finance Lease stated
that if JCTB defaults under the Finance Lease, Plaintiff may, in
addition to its other remedies, remove and retake possession of the
Leased Equipment at JCTB’s expense. Id., ¶ 45 & Ex. A, ¶ 22. In
addition, title in the Leased Equipment remains with Plaintiff,
until such time as JCTB exercises the Purchase Option under the
Finance Lease. Id., ¶ 44 & Ex. A, ¶ 32.
C.
The Promissory Note and Guaranty
On or about December 15, 2016, JCTB executed the Promissory
Note referenced in the Modification Agreement, which addressed a
portion of JCTB’s debt following its initial default under the
Finance Lease. See Atkinson Aff., ¶ 27, Ex. H (Promissory Note). At
the time, JCTB owed a principal sum of $186,401.95, plus interest
from the date of execution of the Promissory Note, calculated at
the rate of 8.75 percent per annum. Id. JCTB agreed to make monthly
payments of $3,846.82 for months 25 through 84 of the Promissory
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Note’s term, as specified in the Payment Schedule attached to the
Promissory Note. Id., ¶ 28 & Ex. H at Schedule A. In the event of
default, the Promissory Note stated, Plaintiff was immediately
entitled to (1) the unpaid principal and interest due at the time
of default, (2) interest on the outstanding principal at the rate
of fifteen percent per annum, and (3) reasonable attorneys’ fees
and costs incurred to enforce the Promissory Note.
See Atkinson
Aff., ¶ 30 & Ex. H at 2.
Also
on December
15, 2016,
Bui
and
Caudillo
executed
a
personal guaranty (“the Guaranty”), which was referenced in the
Modification Agreement. See Atkinson Aff., ¶ 39 & Ex. I (Guaranty).
The Guaranty required Bui and Caudillo each to “absolutely and
unconditionally” guarantee to Xerox “the full and prompt payment
when due, of all amounts owed by [JCTB] to Xerox,” including
payment obligations arising before and after December 15, 2016.
Id., Ex. I at 1.
D.
Defendants’ Defaults
In accordance with the Finance Lease as modified by the
Modification Agreement, Plaintiff submitted invoices to JCTB for
monthly minimum lease payments and for print charges based on the
number of prints produced using the Leased Equipment each month.
JCTB remitted payments for several months but then stopped paying
these invoices as required. See Atkinson Aff., ¶ 16. Plaintiff sent
notifications to Defendants that it had not received payments
-5-
relating to multiple invoices, and that JCTB was in default under
the Agreements. Id., ¶¶ 17-18. With regard to the Promissory Note,
JCTB remitted payments for several months, totaling $14,950.98, but
then
stopped
making
payments.
Id.,
¶
34.
Plaintiff
sent
notifications to JCTB of its delinquency. Id., ¶ 36. To date,
neither JCTB, nor Bui, nor Caudillo, has paid any portion of the
outstanding obligations owed to Plaintiff under the Finance Lease
as modified by the Modification Agreement ($557,540.72), or the
Promissory Note ($248,478.54, plus interest). See Atkinson Aff.,
¶ 42. JCTB never exercised the Purchase Option for the Leased
Equipment. Id., ¶ 46.
III. Plaintiff’s Summary Judgment Motion
A.
Standard on a Motion for Summary Judgment
Federal Rule of Civil Procedure (“F.R.C.P.”) 56(c) states that
summary judgment shall be granted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). The court’s role in determining a motion for
summary judgment is not “to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine
issue for
trial.”
Id.
When
considering
a motion
for
summary
judgment, the court must draw inferences from underlying facts “in
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the light
most
favorable
to
the party
opposing
the
motion.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986).
B.
The Material Facts Are Undisputed
Western District of New York Local Rule of Civil Procedure
56(a)(1) (“L.R. 56(a)(1)”) sets forth the required contents and
form of a statement of facts in support of summary judgment motion.
Plaintiff, in accordance with L.R. 56(a)(1), has set forth the
material and essential facts as to which it contends there is no
material dispute,
citing
admissible
evidence.
See
Plaintiff’s
Statement of Facts (“Pl.’s SOF”) (Docket No. 17-1). In particular,
Plaintiff
recited
Modification
the
pertinent
Agreement,
terms
Promissory
of
the
Note,
Finance
and
Lease,
Guaranty
(collectively, “the Agreements”); outlined Defendants’ defaults
under those agreements; and tabulated the damages owed pursuant to
the Agreements.
In their counterstatement of facts (“Defs.’ CSOF”) (Docket
No.
19-3),
Defendants
have
not
specifically
addressed
or
controverted any of Plaintiff’s facts. Instead, Defendants have
disputed the enforceability of the Agreements’ terms and asserted
that a complete response to Plaintiff’s statement of facts is
impossible because no discovery has occurred. However, “[t]he
non-movant
cannot
‘escape
summary
judgment
merely
by
vaguely
asserting the existence of some unspecified disputed material
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facts,’ . . . or defeat the motion through ‘mere speculation or
conjecture.’” Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d
118, 121 (2d Cir. 1990) (internal quotation and other quotations
and citations omitted). F.R.C.P. 56(c)(1) provides that such an
assertion must be supported by “citing to particular parts of
materials in the record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1).
Moreover,
L.R.
56(a)(2)
provides
that
“[e]ach
numbered
paragraph in the moving party’s statement of material facts will be
deemed
admitted
for
purposes
of
the
motion
unless
it
is
specifically controverted by a correspondingly numbered paragraph
in the opposing statement.” W.D.N.Y. L.R. 56(a)(2). The Court finds
that Defendants have not fulfilled their obligations under F.R.C.P.
56(c), L.R. 56(a)(1), and L.R. 56(a)(2). Therefore, Plaintiff’s
statement of facts must be deemed admitted. See, e.g., Xerox Corp.
v. Graphic Mgmt. Servs. Inc., 959 F. Supp.2d 311, 314-15 (W.D.N.Y.
2013)
(holding
that
Xerox’s
material
facts
would
be
“deemed
admitted for purposes of [its] motion for summary judgment” because
the
defendants’
counterstatement
consisted
of
“conclusory
statements regarding the enforceability of a contract based on
their alleged counterclaims.”).
-8-
C.
The Applicable Law Is New York Law
As jurisdiction is premised on diversity, the Court should
apply the law of New York. Terwilliger v. Terwilliger, 206 F.3d
240, 245 (2d Cir. 2000) (citing Merrill Lynch Interfunding, Inc. v.
Argenti, 155 F.3d 113, 121 n. 5 (2d Cir. 1998) (“Jurisdiction in
this case is premised on diversity, and the parties both present
arguments based on New York law, the law of the forum state. It is
therefore appropriate for this Court to apply New York law.”)
(citation omitted). The Agreements in question each contained a
choice of law provision pursuant to which the parties agreed to
submit to the jurisdiction of New York State or Federal courts and
that the Agreements will be governed by New York law without regard
to conflict-of-law principles. See Pl.’s SOF, ¶¶ 30 & 74; Atkinson
Aff., Exs. A, ¶ 34; B, ¶¶ 25, 29-30; H at 2, 4; I, ¶¶ 16-17. “‘As
a general rule, choice of law provisions . . . are valid and
enforceable in [New York].’” Terwilliger, 206 F.3d at 245 (quoting
Marine Midland Bank, N.A. v. United Missouri Bank, N.A., 643
N.Y.S.2d 528, 530 (1st Dep’t 1996); other citations omitted;
ellipsis in original).
Here, all of the relevant considerations weigh in favor of
interpreting the Agreements under New York law: Plaintiff is a
New York corporation, New York is the forum state, and, “most
importantly, the Agreement[s] specif[y] that they [are] governed by
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New York law.” Terwilliger, 206 F.3d at 245. Accordingly, the Court
applies New York contract law. Id. (citation omitted).
D.
Plaintiff is Entitled to Summary Judgment on Counts I and
IV for Defendants’ Breach of the Finance Lease as
Modified by the Modification Agreement
1.
The Finance Lease and Modification Agreement, by
Their Terms, Unambiguously Impose an Absolute Duty
to Pay
“[W]hen parties set down their agreement in a clear, complete
document, their writing should as a rule be enforced according to
its terms.” Refinemet Int’l Co. v. Eastbourne N.V., 25 F.3d 105,
108 (2d Cir. 1994) (quoting W.W.W. Assocs., Inc. v. Giancontieri,
77 N.Y.2d 157, 162 (1990); citations omitted). This principle
applies to the enforcement of so-called “hell or high water”1
clauses in finance leases. BrooksAmerica Mortgage Corp., 419 F.3d
at 110. The Finance Lease at issue here contains such a “hell or
high water” clause which provides in relevant part that “[JCTB’s]
OBLIGATION TO MAKE ALL PAYMENTS, AND TO PAY ANY OTHER AMOUNTS DUE
OR BECOME DUE, IS ABSOLUTE AND UNCONDITIONAL AND NOT SUBJECT TO
DELAY, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM OR RECOUPMENT FOR
ANY REASON WHATSOEVER, IRRESPECTIVE OF XEROX’S PERFORMANCE OF ITS
1
When a lease “contain[s] a hell or high water clause, the lessee must
make payments regardless of defective performance on the part of the lessor, that
is, ‘come hell or high water.’” Wells Fargo Bank, N.A. v. BrooksAmerica Mortg.
Corp., 419 F.3d 107, 110 (2d Cir. 2005) (“BrooksAmerica”) (quoting 19 Richard A.
Lord, Williston on Contracts § 53:28 (4th ed. 2004)).
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OBLIGATIONS HEREUNDER. . . .” Pl.’s SOF, ¶ 23 & Atkinson Aff.,
Ex. A, ¶ 24 (all capitals in original). Except for those portions
of
the
Finance
Lease
expressly
modified
by
the
Modification
Agreement, the Finance Lease’s provisions—including the “hell or
high water” clause—remained the same in full force and effect.
Atkinson Aff., ¶ 8 & Ex. B, ¶¶ 2, 7(h).
The Second Circuit has recognized that, at the district level,
courts “‘have uniformly given full force and effect to “hell or
high water” clauses in the face of various kinds of defaults by the
party seeking to enforce them.’” BrooksAmerica, 419 F.3d at 110
(quoting In re O.P.M. Leasing Servs., Inc., 21 B.R. 993, 1006-07
(Bankr. S.D.N.Y. 1982)). Here, the Finance Lease’s “hell or high
water”
clause,
which
was
not
altered
or
abrogated
by
the
Modification Agreement, “makes [JCTB]’s obligation to pay rent
absolute and unconditional[,]” BrooksAmerica, 419 F.3d at 110,
irrespective of Defendants’ asserted defenses and counterclaims.
See Xerox Corp. v. RP Digital Servs., 232 F. Supp.3d 321, 324
(W.D.N.Y. 2017) (lessee was liable under finance lease to lessor
for breach of contract, where agreement contained “hell or high
water” clause that created contractual duty for lessee to make
payments
regardless
of
lessor’s
performance
under
agreement;
summary judgment granted to lessor despite undisputed fact that
lessee only stopped making payments after repeatedly informing
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lessor
of
ongoing
technical
difficulties
and
performance
deficiencies).
2.
The
The Self-Executing “Hell or High Water Clause” in
UCC Art. 2A Makes Defendants’ Duty to Pay Absolute
Finance
Lease
also
incorporates
the
statutory,
self-executing “hell or high water” clause referenced in Section
2-A-407 of the UCC. See N.Y. U.C.C. Law § 2-A-407, Off. Cmt. (“This
section extends the benefits of the classic ‘hell or high water’
clause to a finance lease that is not a consumer lease. This
section is self-executing; no special provision need be added to
the contract.”). The parties expressly and unambiguously agreed
that the Finance Lease is a “‘finance lease’ under Article 2A of
the Uniform Commercial Code” and that JCTB waived all “rights and
remedies as a lessee under Article 2A.” Atkinson Aff., Ex. A, ¶ 30.
While a transaction may not qualify as a finance lease under the
UCC definition of a finance lease, the parties may agree that a
lease be treated as a finance lease, as they have here. See N.Y.
U.C.C. Law § 2-A-103(1)(g), Off. Cmt. (“If a transaction does not
qualify as a finance lease, the parties may achieve the same result
by agreement; no negative implications are to be drawn if the
transaction does not qualify.”).
Treating a lease as a “finance lease” under Section 2-A-407 of
the UCC automatically renders the lessee’s obligations to make all
payments
“irrevocable”
and
“not
subject
to
cancellation,
termination, modification, repudiation, excuse, or substitution.”
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N.Y. U.C.C. Law § 2-A-407(2)(b); id., § 2-A-407(2)(B), Off. Cmt. 2.
In other words, the lessee must perform even if the lessor’s
performance is not in accordance with the contract. N.Y. U.C.C. Law
§ 2-A-407, Off. Cmt. 2 (“Th[is] section requires the lessee to
perform
even
if
the
lessor’s
performance
after
the
lessee’s
acceptance is not in accordance with the lease contract.”).
“[W]here the finance lease is not a consumer lease, as is the
case here, the so-called ‘hell or high water clause’ pursuant to
which
the
lease
becomes
irrevocable
and
non-cancellable
and
requires the lessee to make payments irrespective of any defects in
performance, is fully enforceable in New York in the absence of
fraud.” Direct Capital Corp. v. New ABI Inc., 13 Misc. 3d 1151,
1164
(N.Y.
Sup.
Ct.
2006)
(citations
omitted).
There
is
no
suggestion of fraud in the present case, as discussed further below
in
the
context
of
Defendants’
counterclaim
for
fraudulent
inducement.
Accordingly, whether the Court relies on the “hell or high
water clause” in the Finance Lease, or the self-executing clause in
UCC § 2-A-407 that is applicable based on the parties’ agreement to
treat the Finance Lease as a statutory finance lease under UCC
Article 2A, Defendants were obligated to make all payments under
the Agreements, regardless of Plaintiff’s purported breach. Accord,
e.g., Xerox Corp. v. Graphic Mgmt. Servs., 959 F. Supp.2d 311, 318
(W.D.N.Y. 2017).
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3.
There Are No Genuine Issues
Regarding Counts I and IV
of
Material
Fact
Where, as here, there is a “hell or high water” clause in an
agreement (or a provision designating a lease agreement as a
finance lease under Article 2A of the UCC), a lessor establishes
entitlement to judgment as matter of law by demonstrating that the
lessee executed
the
lease
and
then
defaulted
on
its
payment
obligations. See Gen. Elec. Capital Corp. v. Nat’l Tractor Trailer
Sch., Inc., 667 N.Y.S.2d 614, 617 (Sup. Ct. 1997) (lessor of
copying machine stated prima facie case of breach of finance lease
contract; lessor alleged that parties entered into lease contract
under which lessee agreed to make 60 monthly payments, that lessee
stopped making payments after completing five, and that result was
damages
under
lease
equal
to
amount
of
remaining
payments).
Plaintiff here has established all of the requisite elements.
Likewise, with regard to Count IV, there is no genuine issue
of material fact as to Plaintiff’s ownership of, and right to
retake possession of, the Leased Equipment under the Finance Lease
as modified by the Modification Agreement. Accordingly, the Court
grants judgment in Plaintiff’s favor on Counts I and IV.
C.
Plaintiff is Entitled to Summary Judgment on Count II for
JCTB’s Breach of the Promissory Note
“Actions for recovery on a promissory note are appropriately
decided by motion for summary judgment.” Camofi Master LDC v. Coll.
P’ship, Inc., 452 F. Supp.2d 462, 470 (S.D.N.Y. 2006) (citing
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Eisenstein v. Kelly Music & Entm’t Corp., No. 97 Civ. 4649(DC),
1998 WL 289734, at *4 (S.D.N.Y. June 4, 1998) (further citations
omitted)). To make out a prima facie case, “a plaintiff must simply
show proof of a note and failure to make payment.” Eisenstein, 1998
WL 289734, at *4 (internal citations and quotation marks omitted);
see also Gateway State Bank v. Shangri-La Private Club for Women,
Inc.,
113
A.D.2d
791, 791-92
(2d
Dep’t
1985)
(plaintiff
was
entitled to summary judgment on promissory note where there was no
issue of fact as to (1) “proof of the note” and (2) defendant’s
“failure to make payments called for by its terms”), aff’d, 67
N.Y.2d 627 (1986). When a plaintiff has established a prima facie
claim, the burden shifts to the defendant to prove the “‘existence
of a triable issue of fact in the form of a bona fide defense
against the note.’” Nat’l Union Fire Ins. Co. v. Keenan, No. 93
Civ. 6784(LLS), 2005 WL 736233, at *1 (S.D.N.Y. Mar. 31, 2005)
(quoting Couch
White
L.L.P.
v.
Kelly,
729
N.Y.S.2d
206, 207
(3d Dep’t 2001)).
This Court has already found that Plaintiff has established
the absence of genuine issues of material fact as to the existence
of
the
Promissory
Note
and
its
execution
by
JCTB.
And,
the
Promissory Note contains unambiguous language requiring JCTB to
submit
payments
Promissory
to
Note’s
Plaintiff
84-month
throughout
term
as
the
specified
duration
in
a
of
the
schedule.
Finally, there is no genuine issue of material fact that JCTB
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ceased making its required payments under the Promissory Note. See
Pl.’s SOF, ¶¶ 50-52, 55-57; Atkinson Aff., Ex. H.
Defendants,
in
their
opposition
memorandum
of
law,
only
address Plaintiff’s cause of action regarding the Finance Lease
(Count I) and do not set forth any argument against dismissal of
Count II regarding breach of the Promissory Note. The Second
Circuit has “held that when a counseled party moves for summary
judgment, ‘a partial response [by the non-movant] arguing that
summary judgment should be denied as to some claims while not
mentioning others may be deemed an abandonment of the unmentioned
claims.’” Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d
128, 143 (2d Cir. 2016) (quoting Jackson v. Federal Express, 766
F.3d 189, 195 (2d Cir. 2014); footnote omitted). Here, Plaintiff
unequivocally moved for dismissal of all counts of the Complaint.
Therefore, it is “appropriate” to infer from [Defendants’] partial
opposition that relevant claims or defenses that are not defended
have been abandoned.” Jackson, 766 F.3d at 196, 198.
Plaintiff has established its entitlement as a matter of law
to judgment in its favor on Count II. Moreover, the Court finds
that Defendants have abandoned any defense to this cause of action.
Plaintiff’s motion for summary judgment as to Count II is granted.
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D.
Plaintiff Is Entitled to Summary Judgment on Count III
for the Individual Defendants’ Breach of the Guaranty
Under New York law, a guaranty “is the promise to answer for
the payment of some debt or the performance of some obligation, on
default of such payment or performance, by a third person who is
liable in
the
first
instance.”
Terwilliger,
206 F.3d
at
246
(internal citations omitted). The Second Circuit has noted that
“guarantee agreements are construed strictissimi juris under New
York law,” which “mandates that the ‘obligations undertaken by the
guarantor are to be strictly applied[.]’” Compagnie Financiere de
CIC et de L’Union Europeenne v. Merrill Lynch, Pierce, Fenner &
Smith Inc., 188 F.3d 31, 34 (2d Cir. 1999) (internal citation and
quotation omitted). However, “this application occurs only ‘after
the meaning of the contract of guarantee has been determined
according to the ordinary principles of contract construction.’”
Id. (quoting Banco Portugues do Atlantico v. Asland, S.A., 745 F.
Supp. 962, 967 (S.D.N.Y. 1990) (further citations omitted)). If the
intent of the parties to a guaranty is clear and unambiguous based
on
an
examination
of
the
integrated
writing,
the
court
may
determine the guaranty’s proper interpretation by means of summary
judgment. American Home Assur. Co. v. Hapag Lloyd Container Linie,
GmbH, 446 F.3d 313, 316 (2d Cir. 2006) (citation omitted).
“In order to recover under the terms of a guaranty, the
obligee must establish a prima facie case, namely, ‘proof of the
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note, the guarantees, and the failure to make payment in accordance
with their terms[.]’” Tucker Leasing Capital Corp. v. Marin Med.
Mgmt., Inc., 833 F. Supp. 948, 957 (E.D.N.Y. 1993) (quoting Key
Bank of Long Island v. Burns, 556 N.Y.S.2d 829, 830 (2d Dep’t
1990)). The Court finds that Plaintiff has established a prima
facie case. First, Plaintiff has submitted the Guaranty, a separate
and independent writing reflecting JCTB’s underlying obligation to
it, based on the Finance Lease and Promissory Note.
Second, the guarantees set forth in the Guaranty are clear and
unambiguous. Pursuant to the Guaranty, Bui and Caudillo expressly
agreed to “absolutely and unconditionally” guarantee to Xerox “the
full and prompt payment when due, of all amounts owed by [JCTB] to
Xerox,” including all amounts due or to become due under the
Modification
Agreement,
the
Promissory
Note,
and
“all
sale
agreements and leases now or hereafter between Xerox and [JCTB],
including, without limitation” the Finance Lease, together with
“any costs of collection of the same, including attorneys’ fees and
expenses.” Atkinson Aff., Ex. I at 1. The Guaranty also states that
it is “an absolute, unconditional and continuing guaranty of
payment and performance of the Guaranteed Obligations.” Id., Ex. I,
¶ 1 Moreover, Bui and Caudillo “waive[d] any and all defenses,
claims, setoffs, and discharges” of JCTB pertaining to any of the
payment obligations guaranteed under the Guaranty, and agreed that
they “shall not assert, plead or enforce against Xerox . . . any
-18-
setoff available against Xerox to [JCTB] or any other such persons,
whether or not on account of a related transaction.” Id., Ex. I,
¶ 8. The Guaranty further provides that it “shall be enforceable
against each person signing” it, and that “[a]ll agreements and
promises herein shall be construed to be, and are hereby declared
to be, joint and several in each and every particular and shall be
fully binding upon and enforceable against either, any or all
parties signing as Guarantor,” i.e., Bui and Caudillo. Id., Ex. I,
¶ 8.
Third, Plaintiff has presented proof in admissible form
establishing that Bui and Caudillo have failed to remit payments in
accordance with the Guaranty’s terms. See Atkinson Aff., ¶¶ 42-43.
Defendants, in their opposition memorandum of law, do not set
forth any argument against dismissal of Count III regarding breach
of the Guaranty. The Second Circuit has “held that when a counseled
party moves for summary judgment, ‘a partial response [by the
non-movant] arguing that summary judgment should be denied as to
some
claims
while
not
mentioning
others
may
be
deemed
an
abandonment of the unmentioned claims.’” Jackson, 766 F.3d at 196,
198; footnote omitted). Thus, the Court finds it “appropriate” to
“infer from [Defendants’] partial opposition that relevant claims
or defenses that are not defended have been abandoned.” Jackson,
766 F.3d at 196, 198.
Plaintiff has established its entitlement as a matter of law
to judgment in its favor on Count III. Moreover, the Court finds
-19-
that
Defendants
have
abandoned
any
defense
to
this
claim.
Plaintiff’s motion for summary judgment as to Count III is granted.
IV.
Plaintiffs’ Motion to Dismiss Defendants’ Counterclaims
A.
Standard on a Motion to Dismiss
To withstand a dismissal motion pursuant to F.R.C.P. 12(b)(6),
“a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court generally
considers only the factual allegations in the complaint and “any
documents that are either incorporated into the complaint by
reference or attached to the complaint as exhibits.” Blue Tree
Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide,
Inc., 369 F.3d 212, 217 (2d Cir. 2004) (citations omitted). The
“plausibility” standard is met when the litigant “pleads factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 129 S.
Ct.
at
1949
plausibility
(citing
is
a
Twombly,
550
U.S.
“context-specific
at
task
556).
that
Determining
requires
the
reviewing court to draw on its judicial experience and common
sense.” Id. at 1950.
-20-
B.
Defendants’ Counterclaim for Breach of Contract Fails as
a Matter of Law
Defendants assert a counterclaim for breach of contract,
alleging that the limitation of remedies provision in the Finance
Lease
is
unenforceable.
Here,
Paragraph
1
of
the
Terms
and
Conditions of the Finance Lease as modified states that if JCTB is
not “totally satisfied with any Non-SP Equipment delivered under
[the] [Finance Lease], Xerox will, at [JCTB’s] request, replace it
without charge with identical Non-SP Equipment or, at the option of
Xerox, with equipment with comparable features and capabilities.”
Pl.’s SOF, ¶ 25 (quoting Atkinson Aff., Ex. A, ¶ 1). Paragraph 1 of
the Terms and Conditions of the Finance Lease further states that
if “the performance of SP Equipment delivered under [the] [Finance
Lease] is not at least substantially consistent with” agreed-upon
performance expectations, “Xerox will, at [JCTB’s] request replace
the SP Equipment without charge with identical SP Equipment, or at
Xerox’s option, with Xerox equipment with comparable features and
capabilities.” Id., ¶ 26 (quoting Atkinson Aff., Ex. A., ¶ 1).
The UCC authorizes the parties to a lease agreement to fashion
their
own
remedies.
See
N.Y.
U.C.C.
Law
§
2-A-503(3)
(“Consequential damages may be liquidated under Section 2-A-504, or
may
otherwise
be
limited,
altered,
or
excluded
unless
the
limitation, alteration, or exclusion is unconscionable. . . .”);
see also N.Y. U.C.C. Law 2-A-101, Off. Cmt. (recognizing and
incorporating the “fundamental tenet of the common law” of “freedom
-21-
of the parties to contract”). “[C]ourts applying New York law
routinely enforce such limitations [on remedies] according to their
terms.” Ace Sec. Corp. Home Equity Loan Tr., Series 2007-HE3 ex
rel. HSBC Bank USA, Nat. Ass’n v. DB Structured Prod., Inc., 5 F.
Supp.
3d
543,
553
(S.D.N.Y.
2014)
(citing
Baidu,
Inc.
v.
Register.com, Inc., 760 F. Supp.2d 312, 317–18 (S.D.N.Y. 2010)).
“Such limitations clauses are enforced unless the specified remedy
‘fail[s]
of
its
essential
purpose.’”
Maltz
v.
Union
Carbide
Chemicals & Plastics Co., 992 F. Supp. 286, 304 (S.D.N.Y. 1998)
(quoting N.Y. U.C.C. § 2–719(2); citations omitted; brackets in
original).
A
remedy
fails
of
its
essential
purpose
if
“the
circumstances existing at the time of the agreement have changed so
that enforcement of the limited remedy would essentially leave
plaintiff with no remedy at all.” American Tel. & Tel. Co. v.
New York City Human Resources Admin., 833 F. Supp. 962, 986
(S.D.N.Y. 1993) (citations omitted). In general, the question as to
whether changed circumstances have caused a limited remedy to fail
of its essential purpose is factual rather than legal. Piper
Acceptance Corp. v. Barton, No. 83 Civ. 4998(CSH), 1987 WL 5801, at
*2
(S.D.N.Y.
Jan.
14,
1987).
Where
the
facts
pleaded
are
insufficient on their face, dismissal is a matter of law is
appropriate. See Maltz, 992 F. Supp. at 304 (granting motion to
dismiss where plaintiffs “have not even suggested that enforcement
of the limited remedy clause would effectively deprive them of a
-22-
remedy,
nor
do
any
of
the
facts
pleaded
support
such
a
conclusion”).
Defendants assert that the limited remedy provision fails of
its essential purpose because Defendants “lost the substantial
benefit
of
[their]
lease
of
Xerox’s
printer.”
Defendants’
Memorandum of Law (“Defs.’ MOL”) at 4. According to Defendants,
“the printing machine Xerox provided did not work as promised and
as a result [they] suffered damages.” Id. Defendants conclude that
since “the resolution of this issue involves a question of fact,
Defendants are entitled to discovery relating to the reliability of
the equipment.” Id.
Defendants have failed to state a counterclaim for breach of
contract that is plausible on its face. As an initial matter, their
allegations are asserted in a conclusory fashion; so too is their
claim that they require discovery regarding the reliability of
printers leased to them by Plaintiff. Moreover, Defendants have not
explained why, if their chief complaint is that the printers were
not reliable, the limited remedy in the Finance Lease—repair or
replacement of the printers—would effectively deprive them of a
remedy. Indeed, Defendants’ argument is illogical. Because this
counterclaim is not plausible on its face, Plaintiff’s motion to
dismiss it is granted. See Maltz, 992 F. Supp. at 304 (clause
limiting marble care franchisor’s warranty liability in chemical
purchase agreement between franchisees and franchisor did not fail
-23-
of
its
essential
purpose
where
agreement’s
remedy
provision
provided franchisees with option of replacement of the chemicals or
price they paid for the chemicals).
C.
Defendants’ Counterclaim for Fraudulent Inducement Fails
as a Matter of Law
Plaintiff asserts that Defendants’ counterclaim for fraudulent
inducement fails as a matter of law because (1) any alleged
reliance by Defendants on extra-contractual representations is
barred by the plain language of the merger clause of the Finance
Lease; (2) the alleged misrepresentations could not support a claim
of fraud; and, in any event, (3) Defendants released any claim of
fraud or misrepresentation when they executed the Modification
Agreement. See Pl.’s MOL at 19-22.
“To prove fraud under New York law, ‘a plaintiff must show
that (1) the defendant made a material false representation,
(2) the defendant intended to defraud the plaintiff thereby, (3)
the plaintiff reasonably relied upon the representation, and (4)
the plaintiff suffered damage as a result of such reliance.’”
Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98
F.3d 13, 19 (2d Cir. 1996) (quoting Banque Arabe et Internationale
D’Investissement v. Maryland Nat’l Bank, 57 F.3d 146, 153 (2d Cir.
1995)). To sustain a claim for fraudulent inducement in the making
of a contract, the plaintiff must allege a representation that is
collateral to the contract, not simply a breach of a contractual
-24-
warranty. RGH Liquidating Trust v. Deloitte & Touche LLP, 851
N.Y.S.2d 31, 33-34 (1st Dep’t), app. denied, 11 N.Y.3d 804 (2008).
Assuming, for the sake of argument only, that Defendants have
plausibly alleged facts to meet the first, second, and fourth
elements of a fraudulent inducement claim, they cannot satisfy the
detrimental reliance element in light of the Finance Lease’s merger
clause. “It is well-established . . . that a party to a contract
cannot rely on oral representations where a contract specifically
disavows the incorporation of non-written representations.” Wells
Fargo Bank Nw., N.A. v. Taca Int’l Airlines, S.A., 247 F. Supp.2d
352, 368 (S.D.N.Y. 2002) (“Taca Int’l”) (citing Danann Realty Corp.
v. Harris, 5 N.Y.2d 317, 323 (1959)). Significantly, no specialized
language must be used; even a “form merger provision . . . plainly
manifests” the parties’ intention that all prior proceedings be
merged into and superseded by a contract’s express terms. W.W.W.
Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157, 160 (1990). Here, the
Finance Lease clearly and unambiguously states that “this Agreement
constitutes the entire agreement as to its subject matter [and]
supersedes all prior oral and written agreements.” Pl.’s SOF, ¶ 30
&
Atkinson
contracts
Aff.,
which
Ex.
were
A,
¶
34.
“executed
Moreover,
by
the
Agreements
knowledgeable
parties
are
who
negotiated at arm’s length.” Taca Int’l, 247 F. Supp.2d at 369–70.
Defendants plausibly cannot assert that they reasonably relied on
or were fraudulently induced to enter the agreement based on any
-25-
pre-contractual statements allegedly made by Plaintiff or its sales
representatives. See Taca Int’l, 247 F. Supp.2d at 370 (holding
that defendants’ claims of reasonable reliance were contradicted by
undisputed and unambiguous terms of the contracts they signed,
foreclosing them from raising fraud and misrepresentation as a
defense).
D.
Leave to Replead Will Not Be Granted
Defendants
counterclaims,
have
should
requested
the
Court
permission
grant
to
replead
Plaintiff’s
their
motion
to
dismiss. Plaintiff argues that leave to replead the counterclaims
should be denied because any attempt to do so would be futile.
While leave to amend generally “should be freely granted, . .
. the district court has the discretion to deny leave if there is
a good reason for it, such as futility, bad faith, undue delay, or
undue prejudice to the opposing party.” Jin v. Metro. Life Ins.
Co., 310 F.3d 84, 101 (2d Cir. 2002) (citations omitted). The
Second Circuit has held that a request to re-plead is properly be
denied
as
futile
where
the
problems
with
the
complaint
are
substantive and would not be cured by better pleading. Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“The problem with
Cuoco’s causes of action is substantive; better pleading will not
cure it. Repleading would thus be futile. Such a futile request to
replead should be denied.”). Such is the case here. As discussed
above in Sections IV.B and IV.C, the Court has found that, in light
-26-
of the undisputed material facts, Defendants’ counterclaims fail as
a matter of law. In other words, there is no possibility that
Defendants could replead the Complaint’s factual allegations in
such a way as to raise actionable counterclaims for fraudulent
inducement and breach of contract. Therefore, leave to replead is
denied as futile. See, e.g., Montgomery v. Cuomo, 291 F. Supp.3d
303, 353 (W.D.N.Y. 2018) (denying leave to replead where plaintiffs
were asserting a legal theory that was contradicted by Second
Circuit caselaw).
V.
Damages
The Court has reviewed Plaintiffs’ submissions regarding the
calculation and amount of damages, which have not been controverted
by Defendants. Nor have Defendants requested a hearing on damages.
A.
Money Damages
1.
Finance Lease and Modification Agreement
Based on the Court’s granting of judgment as a matter of law
in Plaintiff’s favor on Count I, Plaintiff is entitled to damages
under the Finance Lease, as modified by the Modification Agreement.
Plaintiff asserts that the measure of damages to which it is
entitled is set forth in Paragraph 22 of the Finance Lease (Ex. A
to Atkinson Aff.). This paragraph provides as follows:
22. DEFAULT & REMEDIES. You will be in default under this
Agreement if (1) Xerox does not receive any payment
within 15 days after the date it is due, or (2) you
breach any other obligation in this or any other
agreement with Xerox. If you default, Xerox may, in
addition to its other remedies (including the cessation
-27-
of Maintenance Services), remove the Equipment at your
expense and require immediate payment, as liquidated
damages for loss of bargain and not as a penalty, of: (a)
all amounts then due, plus interest from the due date
until paid at the rate of 1.5% per month; (b) the Minimum
Payments (less the Maintenance Services and Consumable
Supplies components thereof, as reflected on Xerox’s
books and records) remaining in the Term, discounted at
4% per annum; (c) the applicable Purchase Option; and (d)
all applicable Taxes. You will pay all reasonable costs,
including attorneys’ fees, incurred by Xerox to enforce
this Agreement. If you make the Equipment available for
removal by Xerox within 30 days after notice of default,
in the same condition as when delivered (reasonable wear
and tear excepted), you will receive a credit for the
fair market value of the Equipment as determined by
Xerox, less any costs incurred by Xerox.
Id., Ex. A, ¶ 22.
Therefore, Plaintiff has requested, as the first portion of
liquidated damages under the Finance Lease as modified, referenced
in Atkinson Aff., Ex. A, ¶ 22(a), “all amounts then due” at the
time of Defendants’ default. Plaintiff has submitted proof that the
unpaid balance of the invoices outstanding at the time of their
default totals $65,805.48. Atkinson Aff., ¶ 20 & p. 6, nn. 1-2
(setting forth detailed calculations and formulae used).
The second component of liquidated damages under the Finance
Lease as modified by the Modification Agreement, referenced in
Atkinson Aff., Ex. A, ¶ 22(b), consists of “the Minimum Payments
(less the Maintenance Services and Consumable Supplies components
thereof, as reflected on Xerox’s books and records) remaining in
the Term, discounted at 4% per annum.” Plaintiff has submitted
proof that this second component of liquidated damages totals
-28-
$494,453.60. See Atkinson Aff., ¶ 21 & p. 6, nn. 1-2 (setting forth
detailed calculations and formulae used).
Plaintiff is disclaiming recovery under the Purchase Option of
the Leased Equipment as a third component of liquidated damages
under the Finance Lease as modified by the Modification Agreement,
referenced in Atkinson Aff., Ex. A, ¶ 22(c). See Atkinson Aff.,
¶ 22.
With regard to any offsets or credits, Plaintiff indicates
that because it did not invoice Defendants for, and does not here
seek recovery of the Purchase Option, and because Defendants did
not make the Leased Equipment “available for removal by Xerox
within 30 days after notice of default,” it cannot apply the credit
for the fair market value of the Leased Equipment referenced in
Atkinson Aff., Ex. A, ¶ 22.
Subsequent to the commencement of this matter in February
2018, Plaintiff received two payments made by or on behalf of JCTB
totaling the sum of $2,718.36, which reduce the amount due under
the Finance Lease as modified by that amount. Atkinson Aff., ¶ 24.
Accordingly, the principal amount of liquidated damages due
from JCTB
(as
lessee),
Bui
(as
guarantor),
and
Caudillo
(as
guarantor) pursuant to the Finance Lease, as modified by the
Modification Agreement, is $557,540.72 ($65,805.48 due pursuant to
invoices outstanding at the time of default plus $494,453.60 in
accelerated balances calculated in accordance with the terms of the
-29-
Finance
Lease
and
applying
all
applicable
credits
minus
the
$2,718.36 in payments submitted by or on behalf of JCTB, after
default). Atkinson Aff., ¶ 25.
2.
Promissory Note
Based on the Court’s granting of judgment in Plaintiff’s favor
on Count II, Plaintiff is entitled to damages under the Promissory
Note. As part of the Modification Agreement, the parties agreed
that JCTB, as debtor, “shall execute and deliver to Xerox a
Promissory Note in the amount of $186,401.95 in the form required
by Xerox.” The principal of the Promissory Note represented a
portion of the past due invoiced amounts JCTB owed to Xerox under
the Finance Lease as set forth in Exhibit A to the Modification
Agreement.
JCTB agreed to pay this principal ($186,401.95) plus interest
calculated at a rate of 8.75 percent per annum from December 15,
2016, making monthly payments of $1,359.18 for months 1-24 of the
term of the Promissory Note, and then making monthly payments of
$3,846.82 for months 25-84 of the term of the Promissory Note, with
payments due on the 20th day of each month beginning January 20,
2017. Atkinson Aff., ¶¶ 27-28. The Promissory Note provides that if
payment is not received by Plaintiff within ten (10) days after its
due date, JCTB shall pay an additional charge equal to 5 percent of
the delinquent payment or the highest additional payment allowed by
law, whichever is greater. Id., ¶ 29.
-30-
JCTB made payments totaling $14,950.98 before it defaulted
pursuant to the Promissory Note. Atkinson Aff., ¶ 34.
Plaintiff has submitted proof that a total of $248,478.54 is
due and owing from JCTB pursuant to the Promissory Note. This
amount was calculated by subtracting the $14,950.98 in payments
made by JCTB, from the $263,429.52 total of all payments that JCTB
agreed to make pursuant to the Promissory (24 payments of $1,359.18
and 60 payments of $3,846.82).
3.
The Guaranty
In light of the Court’s awarding of judgment in Plaintiff’s
favor on Count III, Plaintiff is entitled to damages pursuant to
the Guaranty. By signing the Guaranty, Bui and Caudillo expressly
agreed to “absolutely and unconditionally” guarantee to Xerox “the
full and prompt payment when due, of all amounts owed by [JCTB] to
Xerox,” including all amounts due or to become due under the
Modification
Agreement,
the
Promissory
Note,
and
“all
sale
agreements and leases now or hereafter between Xerox and [JCTB],
including, without limitation” the Finance Lease. Atkinson Aff.,
¶ 40 & Ex. I.
Neither Bui, Caudillo, JCTB, nor any other person or entity
has paid any portion of the outstanding obligations owed by JCTB to
Plaintiff pursuant to the agreements outlined above, including
JCTB, Bui, and Caudillo’s payment obligations pursuant to the
Finance
Lease
as
modified
by
-31-
the
Modification
Agreement
($557,540.72) and JCTB’s payment obligations under the Promissory
Note ($248,478.54). Accordingly, the sum of $806,019.26 remains
outstanding and due from Bui and Caudillo to Plaintiff, pursuant to
the Guaranty ($557,540.72 due under the Finance Lease, as modified
by the Modification Agreement plus $248,478.54 due under the
Promissory Note).
4.
Reasonable Attorneys’ Fees and Costs
Pursuant to Paragraph 22 of the Finance Lease as modified by
the Modification Agreement (Exhibit A), Page 2 of the Promissory
Note (Atkinson Aff., Ex. H), and Paragraph 5 of the Guaranty
(Atkinson Aff., Ex. I), Plaintiff also is entitled to recover “all
reasonable costs, including attorneys’ fees, incurred by Xerox to
enforce”
each
of
these
agreements.
Atkinson
Aff.,
¶¶
49-50.
Plaintiff indicates that its attorneys will be submitted additional
proof of these damages.
B.
Declaratory Relief Under 28 U.S.C. § 2201
Based on the Court’s granting of judgment as a matter of law
on Count IV, Plaintiff is entitled to a judgment declaring as
follows: (1) Plaintiff is the lawful owner of the Leased Equipment;
(2) JCTB’s right to possession of the Leased Equipment is limited
by the terms of the Finance Lease as modified by the Modification
Agreement; (3) JCTB has materially breached and defaulted on its
obligations under the Finance Lease as modified by the Modification
Agreement; (4) JCTB has no current right to possess or retain the
-32-
Leased Equipment; and (5) Plaintiff is entitled to immediately
retake possession of the Leased Equipment.
VI.
Conclusion
For the foregoing reasons, Plaintiff’s Motion for Summary
Judgment and to Dismiss Counterclaims (Docket No. 17) is granted.
Defendants’ counterclaims are dismissed with prejudice. Plaintiff
is
granted
summary
judgment
on
Counts
I
through
III
of
the
Complaint and is entitled to a total compensatory damages award of
$806,019.26 on those counts. Declaratory judgment is awarded to
Plaintiff
on
Count
IV,
entitling
it
to
immediately
retake
possession of the Leased Equipment, which is identified with
particularity in the Complaint. By separate application, Plaintiff
shall submit proof of its reasonable attorneys’ fees and costs.
Thereafter, Defendants will have thirty (30) days to file any
objections to Plaintiff’s request. The Clerk of Court is directed
to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
November 2, 2018
Rochester, New York
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