Brown v. Vitucci

• Decision Date: 19 February 2022
• Docket Number: CV 14-5034 (DRH)(AYS)
• Parties: LINFORD A. BROWN, Jr. and CROWN ACQUISTION HOLDING CORP., Plaintiffs, v. CHRISTOPHER H. VITUCCI, B.C.A. LEASING, LTD., B.C. BENJAMIN AUTO SALES, INC., MANUEL F. NASH, GLEN T. KENAH, AND COUNTY OF NASSAU, Defendants.
• Court: U.S. District Court — Eastern District of New York

LINFORD A. BROWN, Jr. and CROWN ACQUISTION HOLDING CORP., Plaintiffs, v. CHRISTOPHER H. VITUCCI, B.C.A. LEASING, LTD., B.C. BENJAMIN AUTO SALES, INC., MANUEL F. NASH, GLEN T. KENAH, AND COUNTY OF NASSAU, Defendants.

No. CV 14-5034 (DRH)(AYS)

United States District Court, E.D. New York

February 19, 2022

REPORT AND RECOMMENDATION

ANNE Y. SHIELDS, United States Magistrate Judge:

This is a civil rights and contractual action arising out of the leasing of an automobile by Plaintiffs, for which they allegedly failed to make payments.Before the Court, on referral from the Honorable Denis R. Hurley, are separate motions for summary judgment by each set of Defendants, as well as Plaintiff's cross-motion for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56.For the following reasons, this Court respectfully recommends that all Defendants' motions be granted and that Plaintiff's motion be denied.

FACTUAL BACKGROUND

I.Basis of Facts Recited Herein

The relevant facts, as set forth below, are taken from Defendants' Local Civil Rule 56.1 Statements of undisputed material facts and those portions of Plaintiffs' Local Civil Rule 56.1 Statement that are not disputed by Defendants, as well as the evidence submitted by the parties in support of their individual motions.As noted by all Defendants, Plaintiffs failed to file a counterstatement to each of their 56.1 Statements, as required by Local CivilRule 56.1(b).Pursuant to Local Civil Rule 56.1, where the party opposing summary judgment fails to file the required Local Civil Rule 56.1 counter-statement, “[e]ach numbered paragraph in the statement of material facts required to be served by the moving party will be deemed admitted for purposes of the motion [for summary judgment] unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.”LocalCiv. R. 56.1(c).Defendants each complied with this requirement by filing a counter-statement to Plaintiffs' Local Civil Rule 56 Statement.

Plaintiffs address their failure to file a counter-statement in their Reply Memorandum of Law, asserting that since they are moving separately for summary judgment, “such a requirement is not applicable.”(Pl. Reply Mem. of Law 4.)According to Plaintiffs, their statement of facts “adequately addresses each of the defendants own statements” and “responding specifically to each defendant's statement . . . would have been cumbersome, unduly burdensome and would have resulted in repetitiveness . . . .”(Id.)Not surprisingly, Plaintiffs do not cite to any case law to support their position.Nor is the Court aware of any.The requirement to file a Rule 56.1 counter-statement in opposition to summary judgment is very clearly set forth in the Local Civil Rules.Compliance with Local Civil Rule Rule 56.1 is the opposite of “cumbersome.”Instead, it allows the Court to easily focus on statements to identify issues of fact.Apparently finding compliance with the local rule too burdensome, Plaintiffs have elected to ignore their responsibilities to comply with this requirement.

The Court finds Defendants' Rule 56.1 Statements to be proper since they contain citations to admissible evidence to support each asserted material fact, seeGiannullo v City of New York,322 F.3d 139, 140(2d Cir.2003), and, based upon Plaintiffs' failure to comply with Local Civil Rule 56.1, deems the facts set forth in Defendants' 56.1 Statements admitted.SeeNassar Family Irrevocable Trust v. United States,Nos. 13 Civ. 5680, 13 Civ. 8174, 2016 WL 5793737, at *1 n.2(S.D.N.Y.Sept. 30, 2016)(“Because Nassar failed to file a response [to Defendant's Rule 56.1 Statement], all facts set forth in the Government's statement are deemed admitted in deciding the instant motion.”);Luizzi v. Pro Transport Inc.,No. 02 CV 5388, 2009 WL 252076, at *2(E.D.N.Y.Feb. 2, 2009)(“Where the party opposing a motion for summary judgment fails to submit a proper counter-statement of material facts, controverting the moving party's statement, courts have deemed the moving party's statement of facts to be admitted and have granted summary judgment in favor of the moving party on the basis of the uncontroverted facts.”).

II.Relevant Facts

On or about April 3, 2008, Plaintiffs, Linford Brown(“Brown”) and Crown Acquisition Holding Corp.(“Crown”)(collectively, “Plaintiffs”) - a business incorporated under the laws of the State of New York that was subsequently dissolved by proclamation in 2004, of which Brown was the principal shareholder and sole owner - entered into a motor vehicle lease agreement (the “Lease Agreement”) with DefendantB.C.A. Leasing Ltd.(“BCA”) for a 2007 Bentley Flying Spur (the “Bentley”), with monthly payments in the amount of $2, 108.98. (Def. BCA and Christopher Vittuci's LocalCiv. R. 56.1Statement (“BCA 56.1”)¶ 1;Def. B.C. Benjamin Auto Sales, Inc.'s LocalCiv. R. 56.1Statement (“BC Benjamin 56.1”)¶ 1.;Def. County of Nassau, Manuel Nash and Glen Kenah's LocalCiv. R. 56.1 Statement (“CountyDef. 56.1”)¶ 2;Pl. LocalCiv. R. 56.1Statement (“Pl. 56.1”), ¶¶ 2-3, 18.))BCA obtained the Bentley from DefendantB.C. Benjamin Auto Sales, Inc.(“BC Benjamin”), which had purchased it from an unrelated third party.(BC Benjamin 56.1¶ 2;Pl. 56.1¶ 19.)At the time the parties entered into the Leasing Agreement, DefendantChristopher Vitucci(“Vitucci”) was the majority owner of both BCA and BC Benjamin; however, the two companies were separate legal entities.(Pl. LocalCiv. R. 56.1Statement (“Pl. 56.1”), p. 2 ¶ 4;BC Benjamin 56.1¶ 4;CountyDef. 56.1 ¶ 3.)^[1] BCA subsequently assigned the Lease Agreement to All Points Capital Corp.(“APCC”), whereupon BCA was named on the Bentley's title but APCC held a lien.(BCA 56.1 ¶¶ 2-3;BC Benjamin 56.1¶ 5;CountyDef. 56.1 ¶ 4;Pl. 56.1¶ 22.)Payments for the Bentley were remitted by Plaintiffs to BCA and/or Vitucci.(CountyDef. 56.1 ¶ 7.)

By letter dated December 22, 2010, APCC informed Plaintiffs that they were past due in their lease payments, sales tax and late charges for the months of August, September, October, November, and December 2010, for a total amount due and owing of $12, 469.78 as of that date, with the potential for acceleration.(BCA 56.1 ¶ 5.)On or about January 25, 2011, Plaintiffs delivered a check to BCA in the amount of $12, 648.00. (Id.¶ 6;Pl. 56.1¶ 25.)In or about February 2011, BCA delivered to APCC payment on behalf of Plaintiffs for the Bentley in the amount of $11, 632.80.(BCA 56.1 ¶ 7.)

APCC repeatedly attempted to contact Plaintiffs via certified or registered mail addressed to Brown to obtain payments for the Bentley after February 2011.(Id.¶ 8;CountyDef. 56.1 ¶ 8.)Among the letters sent to Plaintiffs was a June 9, 2011 letter with a Conversion Worksheet, which stated that the matter would be reported the following week to “secure [the] collateral.”(CountyDef. 56.1 ¶ 9;BCA 56.1 ¶ 9.)By letter dated August 16, 2011, APCC directed that all payments for the Bentley should be made directly to APCC and listed the “Next Due” payment as February 5, 2011, with only thirty-three payments having been made.(BCA 56.1 ¶ 10.)On September 19, 2011, APCC again wrote to Plaintiffs, advising that it had not received monthly lease payments for February through September 2011, totaling $19, 613.54 due and owing, and advised Plaintiffs that it was accelerating the lease balance due to demand $115, 466.20. (Id.¶ 11.)All of the letters sent to Plaintiffs were returned, unopened, bearing a notation indicating that the letters went unclaimed.(CountyDef. 56.1 ¶ 10.)

In or about August 2011, Vitucci lodged a complaint with the Nassau County Police Department for Brown's unauthorized use of the Bentley.(BCA 56.1 ¶¶ 12-13;BC Benjamin 56.1¶ 9;CountyDef. 56.1 ¶ 12;Pl. 56.1¶ 33.)The case was assigned to Defendant Detective Manuel Nash(“Nash”).(CountyDef. 56.1 ¶ 13;Pl. 56.1¶ 33.)Nash spoke with Vitucci about his complaint, during which Vitucci advised Nash that Brown was delinquent in his payments for the Bentley, that efforts to contact Brown were unsuccessful, and that Brown was no longer authorized to use the vehicle.(CountyDef. 56.1 ¶ 14.)

Nash spoke with Brown on or about August 24, 2011.(Id.¶ 15;Pl. 56.1¶¶ 45, 49.)During that conversation, Brown represented to Nash that he either leased or owned the Bentley and that he was current on all payments.(CountyDef. 56.1 ¶ 16;Pl. 56.1¶ 50.)Nash advised Brown that he needed to contact Vitucci to resolve the matter to avoid it becoming a criminal proceeding.(CountyDef. 56.1 ¶ 17;Pl. 56.1¶ 51.)Thereafter, Brown, or someone acting on his behalf, faxed a copy of the front of a check dated January 25, 2011, in the amount of $12, 648.00, payable to BCA Leasing, to the Nassau County Police Department.(CountyDef. 56.1 ¶ 18;Pl. 56.1¶ 61.)

On or about September 7, 2011, Vitucci signed a supporting deposition attesting to the fact that Brown was in default on the Bentley's payments since January 2011.(CountyDef. 56.1 ¶ 21;Pl. 56.1¶ 38.)The signed deposition stated that efforts to contact Brown were unsuccessful, as were efforts to repossess the Bentley.(CountyDef. 56.1 ¶ 21.)That same day, Vitucci also signed a supporting deposition for Brown's unauthorized use of the Bentley.(Id.¶ 22;BCA 56.1 ¶ 12;Pl. 56.1¶ 39.)Vitucci requested that Brown be arrested and signed the accusatory instrument.(CountyDef. 56.1 ¶ 23.)

On September 27, 2011, Nash and Defendant Detective Glen Kenah(“Kenah”) drove to Brown's business address in Melville, New York, with the intent of placing him under arrest.(Id.¶ 24.)Nash and Kenah observed Brown driving into the parking lot of a...