9178-6103 Quibec Inc. v. Unitrans-Pra Co.
| Decision Date | 17 October 2018 |
| Docket Number | 09-CV-144(MDG) |
| Court | U.S. District Court — Eastern District of New York |
| Parties | 9178-6103 QUIBEC INC., Plaintiff, v. UNITRANS-PRA CO., INC.; FT&T CONSULTING, INC. and VLADIMIR LYSOGORSKY, Defendants. |
In this action brought under general maritime law and the Carriage of Goods by Sea Act of 1936 ("COGSA"), 46 U.S.C. § 30701,1 plaintiff 9178-6103 Quibec Inc. ("Quibec") asserts claims for breach of contract and replevin against defendants Unitrans-Pra Co., Inc. ("Unitrans"), FT&T Consulting, Inc. ("FT&T") and Vladimir Lysogorsky (collectively, "defendants") with respect to five vehicles owned by plaintiff. See Complaint ("Compl.") . Plaintiff alleges in its Complaint that defendants had been employed to ship the vehicles to Kotka, Finland, but the defendants refused to release the vehicles upon arrival without payment of $104,000. See id. at ¶¶ 10, 13. The plaintiff paid $52,000 to defendants and obtained the release offour of the vehicles, but defendants continue to hold the fifth vehicle, a Bentley. See id. at ¶ 14.
Plaintiff commenced this action on January 13, 2009 by order to show cause for injunctive relief for the release of the Bentley. See DE 2 (Memorandum of Law in Support of Order to Show Cause). Following a hearing held on March 6, 2009, the parties entered into an agreement consenting to entry of an order resolving plaintiff's motion and providing for release of the Bentley after plaintiff deposits $52,000 to be held in escrow pending final determination of this action. See DE 15 (order); 14 (consent of the parties filed).
After completion of discovery, defendants moved for summary judgment on all claims, seeking dismissal of the complaint and an order directing plaintiff to turn over $52,000 held in escrow. See DE 22. Plaintiff filed a cross-motion for summary judgment seeking a return of the $52,000 held in escrow and other relief sought in their complaint. See DE 28. The parties consented pursuant to 28 U.S.C. § 636(c) to having me hear all matters in this action.
For the following reasons, plaintiff's motion is denied and defendants' motion is granted.
Although the parties dispute a number of factual details, they agree on the salient events. The following facts are undisputed, unless otherwise indicated.
Plaintiff is a Canadian corporation engaged in the business of exporting cars. See Compl. ¶ 4 (verified by Olga Markina, Vice President of Quibec); see also Partial Transcript of Deposition2 of Olga Markina ("Markina Dep.") (attached as DE 22-3 beginning at 39) at 7. The two corporate defendants are incorporated in the State of New Jersey, with offices in Brooklyn, and Mr. Lysogorsky, the president and principal owner of Unitrans, also conducts business in Brooklyn. See Compl. ¶¶ 5-6; Defs'. Summ. J. Mot. (DE 22) at 5. Unitrans is a licensed non-vessel operating common carrier ("NVOCC") which acts as a transportation intermediary in arranging for cargo to be transported by an ocean carrier. See Declaration of Victoria Farber dated Feb. 27, 2009 ("Farber Decl.") (DE 9) ¶ 21. As an NVOCC, Unitrains is not a vessel owner and, instead, acts as an intermediary, engaging vessel operators and contractors to transport and monitor cargo. See id.; see also Royal & Sun Alliance Inc. v. Ocean World Lines, 612 F.3d 138, 141 n. 2 (2d Cir. 2010) (describing role of NVOCC). As noted by Victoria Farber,3operations manager of FT&T, the two defendant corporations "are at the same location, and some of the principal parties are the same." Farber Dep. at 4-5. FT&T is a subcontractor of Unitrans that provides certain support services, including billing and freight collection. See Farber Decl. at ¶ 14.
Sometime prior to December 2008, plaintiff engaged Alexandre Morozov ("Morozov") and STS Group, Inc. ("STS") to arrange for the shipping of seven luxury vehicles to Finland, of which five are the subject of plaintiff's claims herein.4 See Compl. ¶ 10, 12; Markina Dep. at 71-72. Quibec had previously used Morozov and STS as a broker to purchase vehicles and to arrange for shipping. See Markina Dep. at 31-33. STS was the broker who found and/or assisted in the purchase of the two 2009 Mercedes Benz, the 2006 Lexus and the 2006 Bently at issue in the instant case. Id. at 30-31. STS then contracted with defendant Unitrans to arrange for thevehicles to be shipped to the port of Kotka in Finland and Unitrans issued bills of lading listing STS as the Exporter (or shipper), Anikin Alexey as Consignee and Unitrans as forwarding Agent. See bills of lading for the Bentley and other vehicles (attached as Exhibit G and H to Farber Decl.) (DE 9-8, 9-9); see also Compl. ¶ 10; Markina Dep. at 33.
According to defendants, and not disputed by plaintiff, in the course of dealings between STS and FT&T, STS had given FT&T liens on shipped vehicles to secure loans advanced by FT&T to STS for the purchase of the vehicles. See Declaration of Irina Ianova dated April 9, 2010 ("Ianova Decl.") (DE 32) at ¶ 2, Exh. G (copies of checks and lien agreements). The lien agreements required full payment upon delivery. See id. at ¶ 3, Ex. G. FT&T had a lien agreement with STS with respect to the financing of the 2006 Bentley VIN No. SCBBR53W66c034644 (the "Bentley") and Unitrans had possession of the original certificate of title for that vehicle. See Farber Decl. at ¶¶ 5, 6, Exh. J (bill of sale and lien agreement). Unitrans also holds the certificates of title for the other four vehicles, which it needed to clear the vehicles through U.S. Customs for export and it continued to hold the certificates as security for freight and other charges. Farber Decl. at ¶¶ 5(b), 6; Exh. B (DE 9-3).
After the cars were transported to Finland, Ms. Markina received two e-mails from Inga Chemerospva of Unitrans on December 2, 2008 listing the vehicle identification numbers for the five vehicles, the second of which also stated: "will be released [on]12/02/08 for Anikin Alexey/Invest Auto." Compl., Exh. A (DE 1) at 14. However, FT&T had asserted a lien on the vehicles for $135,172 owed by STS to FT&T for moneys owed for freight charges and purchase monies provided. See Farber Decl. ¶¶ 12, 14, 15, 19; Ex. I at 2. Unitrans refused to release the vehicles to plaintiff without payment. See id. at ¶¶ 12-13, 20, Exh. A.
Ms. Markina had several conversations with personnel of Unitrans and FT&T about release of the vehicles. See Markina Dep. 64-66. On December 2, 2008, she went to the offices of Unitrans and had a conversation first with Inga and Yelena of Unitrans and was told that the defendants had an issue with STS. See id. at 70. In a subsequent discussion on the same or a later day with Lysogorsky, she was told that STS owed monies to FT&T and had sold the cars to Unitrans as security for the debt. See id. at 63, 64-66, 69, 70. In the course of these discussions, Quibec was also advised by defendants that the vehicles would be sold if the monies owed by STS were not repaid to FT&T. See id. at 69. Quibec ultimately agreed to pay Unitrans $104,000 for release of the five vehicles, with four of the vehicles to be released upon payment of $52,000 and a Bentley to be released upon payment of the balance of $52,000. See id. at 70-71.
Plaintiff understood that the $104,000 was for a debt owed by STS Group, Alexandre Morozov and Diamond Shipping, Inc., another shipping company possibly related to STS Group, to defendants for a transaction unrelated to the shipping of these vehicles. See id. at 70; Compl. ¶¶ 21, 25. Ms. Markina testified that after theDecember 2 meeting, she talked to Morozov, who admitted that STS had gotten loans from FT&T and given cars as security to Unitrans, but that the monies STS owed was for other cars. See Markina Dep. 67-68.
In the course of a discussion involving Markina and Lysogorsky at the defendants' office, Markina called Quibec's attorney, Douglas Durnin, and asked him to prepare an agreement reflecting the terms of the agreed exchange for release of the vehicles. See Markina Dep. at 76-77 (). The agreement was faxed with a cover sheet indicating that it had been faxed from Mr. Durnin to Mr. Lysogorsky on December 8, 2008 (the "Agreement") and bore the typewritten notation "Enc 2 agreements re 7 cars then 7 cars D Durnin." See Exh. E to Declaration of Joseph DeMay in support of defendant's motion ("DeMay Decl.") (DE 22-3). Although she testified that Lysogorsky may have signed the agreement in her presence, Markina could not remember whether she took the agreement when she left. See Markina Dep. 78-81. Farber claims that as she was photocopying the agreement, Markina grabbed the agreement and promised to send a copy, but never did. See Farber Decl. at ¶ 11.
After Unitrans wired $52,000 to Unitrans or FT&T four or five days later, defendants released four of the vehicles, but continued to hold the Bentley. See Markina Dep. at 71-74. There were discussions thereafter between the plaintiff and someone from Unitrans regarding the second payment of $52,000 and release of the Bentley. See id. at 75.
All documentation concerning the Bentley "is in the hands of Defendant Unitrans or their agent overseas . . . ." Affirmation of Douglas Durnin dated Januaury 9, 2009 (DE 3) at ¶ 8.
On January 13, 2009, plaintiff commenced this action by Order to Show Cause seeking a preliminary injunction requiring defendants to release the Bentley. See DE 2. Following a hearing before the Honorable Jack Weinstein, the parties agreed to the entry of a consent order, which provided that defendants would release the Bentley to plaintiff in exchange for plaintiff placing $52,000 in escrow. See DE 14. This transaction was successfully accomplished. Defs.' Summ. J. Mem. (DE 22-4) at 2-3.
In its Complaint, plaintiff claims it paid the $52,000 for release of four of the cars under duress. See...
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