Leeber Realty LLC v. Trustco Bank

• Decision Date: 01 June 2018
• Docket Number: No. 17–CV–2934 (KMK),17–CV–2934 (KMK)
• Citation: 316 F.Supp.3d 594
• Parties: LEEBER REALTY LLC and Bernard Cohen, both individually and in his capacity as Trustee of the Bernard Cohen Revocable Trust, Plaintiffs, v. TRUSTCO BANK, Defendant.
• Court: U.S. District Court — Southern District of New York

316 F.Supp.3d 594

LEEBER REALTY LLC and Bernard Cohen, both individually and in his capacity as Trustee of the Bernard Cohen Revocable Trust, Plaintiffs,

v.TRUSTCO BANK, Defendant.

No. 17–CV–2934 (KMK)

United States District Court, S.D. New York.

Signed June 1, 2018

Filed June 4, 2018

Michael A. Freeman, Esq., Greenberg Freeman, LLP, New York, NY, Counsel for Plaintiffs

Adam K. Kurland, Esq., Fenster & Kurland LLP, New City, NY, Counsel for Defendant

OPINION & ORDER

KENNETH M. KARAS, District Judge:

Plaintiffs Leeber Realty LLC ("Leeber") and Bernard Cohen ("Cohen" and collectively, "Plaintiffs") brought this Action against Trustco Bank ("Defendant"), alleging that Defendant breached a commercial lease contract. (Am. Compl. (Dkt. No. 39).) Defendant counterclaimed that Plaintiffs breached the contract by failing to make necessary repairs and that Defendant was constructively evicted. (Am. Answer to Am. Compl. With Counterclaims ("Am. Answer") 4–7 (Dkt. No. 42).) Before the Court is Plaintiffs' Motion for Summary Judgment, fees and costs, and dismissal of the counterclaims. (Notice of Mot. (Dkt. No. 53).) For the following reasons, the Motion is granted in part and denied in part.

I. Background

A. The Parties' 56.1 Statements and Evidentiary Objections

Local Civil Rule 56.1(a) requires the moving party to submit a "short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." The nonmoving party, in turn, must submit "a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short[,] and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried." Local Civ. R. 56.1(b). "If the opposing party ... fails to controvert a fact set forth in the movant's Rule 56.1 statement, that fact will be deemed admitted pursuant to the local rule." Baity v. Kralik , 51 F.Supp.3d 414, 418 (S.D.N.Y. 2014) (internal quotation marks omitted) ); see also T.Y. v. N.Y.C. Dep't of Educ. , 584 F.3d 412, 418 (2d Cir. 2009) (same). "The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties." Holtz v. Rockefeller & Co. , 258 F.3d 62, 74 (2d Cir. 2001).

Here, Plaintiffs filed and served their statement pursuant to Rule 56.1, (Pls.' Rule 56.1 Statement ("Pls.' 56.1") (Dkt. No. 54) ), and Defendant filed a response, (Def.'s Rule 56.1 Statement ("Def.'s 56.1") (Dkt. No. 59) ). However, Defendant's response for the most part does not comply with Rule 56.1. Of the 85 separately numbered paragraphs in Plaintiffs' 56.1 statement, (Pls.' 56.1), Defendant conceded that 62 of them are "[u]ncontested," (Def.'s 56.1). Of the remaining 23 paragraphs, Defendant (1) failed to answer one of them, (Def.'s 56.1 ¶ 48); (2) stated that it lacked sufficient information to respond to three of them, (id. ¶¶ 81, 82, 83); (3) asserted an "objection" on legal grounds to nine of them, (id. ¶¶ 43, 50, 51, 61, 71, 75, 80, 84, 85); and (4) "contested" 10 of them, (id. ¶¶ 3, 25, 32, 35, 38, 41, 55, 64, 73, 74).

"[T]he Court has afforded no weight to any legal argument" in Plaintiff's 56.1 Statement. Greene v. City of New York , No. 08-CV-243, 2017 WL 1030707, at *1 n.3 (E.D.N.Y. Mar. 15, 2017). However, the purported legal objections Defendant raises are without merit, (Def.'s 56.1 ¶¶ 43, 50, 51 (arguing that "[t]he recitation of deposition testimony of a witness ... is not an appropriate statement of material fact"); id. at ¶¶ 61, 71, 75, 80, 84, 85 (objecting to the alleged use of the word "quit" and mathematical calculations under the lease terms as "legal conclusion[s]"); see also id. ¶ 3 (" ‘Regularly’ is vague and ambiguous."); id. ¶¶ 73–74 (objecting to use of the word "default" because it "is a legal conclusion") ), and, in any event, do not actually respond to or dispute the specific facts, supported by citations to admissible record evidence, alleged in the relevant paragraphs. See Baity , 51 F.Supp.3d at 418 ("[A] number of [Defendant's] purported denials quibble with [Plaintiffs'] phraseology, but do not address the factual substance asserted by [Plaintiffs]."). Similarly, Defendant has failed to actually dispute the purported material facts in the paragraphs it has "contested" in Plaintiffs' 56.1 statement. Instead, in all but two of the remaining "contested" paragraphs, Defendant contends that the evidence Plaintiffs cite does not support the asserted factual statements. (Def.'s 56.1 ¶¶ 25, 32, 35, 38, 41, 55.) The Court has independently reviewed the cited portions of the record to make sure they support Plaintiffs' factual assertions. See Baity , 51 F.Supp.3d at 421 ("[T]he Court is mindful that ... a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record." (alteration and internal quotation marks omitted) ). But, provided they are supported by the record, Defendant's failure to actually dispute the factual material in these identified paragraphs, let alone provide record citations in attempting to dispute them, permits the Court to find them undisputed. See Holtz , 258 F.3d at 73 (explaining that a court is not required to search the record for genuine issues of material fact that the party opposing summary judgment failed to bring to the court's attention); Baity , 51 F.Supp.3d at 418 (collecting cases holding that "responses that do not point to any evidence in the record that may create a genuine issue of material fact do not function as denials, and will be deemed admissions of the stated fact." (alteration and internal quotation marks omitted) ); id. at 419 ("[S]everal of [the] [p]laintiff's purported denials lack citations to admissible evidence or any evidence to support his contention, in violation of Fed. R. Civ. P. 56(c) and Local Rule 56.1.").

Defendant does cite the record—specifically, an affirmation from Defendant's counsel, Adam K. Kurland—in two of the "contested" paragraphs. (Def.'s 56.1 ¶¶ 3, 64 (citing Def.'s Mem. of Law in Opp'n to Mot. for Summ. J. ("Def.'s Mem.") Ex. 1 ("Kurland Aff.") (Dkt. No. 58) ).) This affirmation describes the contents of a telephone conversation he had with Christopher Wirth, a potential witness identified during discovery, see Fed. R. Civ. P. 26, who was never deposed, has not submitted an affidavit or declaration and indeed has not responded to Kurland's attempts to contact him regarding a proposed affidavit Kurland drafted on Wirth's behalf, (Kurland Aff. ¶¶ 5–7). Therefore, this affirmation contains inadmissible hearsay statements, and the Court will not consider it in deciding the instant Motion. See Union Ins. Soc. of Canton, Ltd. v. William Gluckin & Co. , 353 F.2d 946, 952 (2d Cir. 1965) (holding that an attorney affirmation not based on personal knowledge is hearsay and is not to be considered on motion for summary judgment); Cavanagh v. Ford Motor Co. , No. 13-CV-4584, 2017 WL 2805057, at *8 (E.D.N.Y. June 9, 2017) ("Plaintiffs seem to rely on conversations that their counsel had with former employees ... Such inadmissible hearsay, whether in a witness affidavit or an attorney affirmation however, cannot form the basis of a party's opposition to summary judgment."), adopted , 2017 WL 2804934 (E.D.N.Y. June 28, 2017) ; Baity , 51 F.Supp.3d at 419 (declining to consider "the improper assertions and arguments contained in [an attorney] affirmation, or the exhibits to the affirmation containing inadmissible evidence" (internal quotation marks omitted) ); see also Fed. R. Evid. 801(c) (defining hearsay); Fed. R. Evid. 802 (denoting hearsay as inadmissible evidence); Fed. R. Civ. P. 56(c)(4) (providing that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated").

Furthermore, despite failing to identify additional material and disputed facts in its 56.1 statement, Defendant cites additional evidence in its memorandum opposing the Motion for Summary Judgment. (See Def.'s Mem.) This evidence includes, among other things, sworn affidavits from Robert Leonard ("Leonard"), Defendant's Executive Vice President and Chief Risk Officer, and Joseph Marley ("Marley"), Defendant's Officer of Purchasing, Mail Services and Security. (Def.'s Mem. 2–4, 9 (citing id. Ex. 2 ("Leonard Aff."); id. Ex. 3 ("Marley Aff.") ).) Both of these affidavits include inadmissible evidence. Leonard's affidavit parrots Defendant's counterclaims verbatim, as does Defendant's memorandum. (Compare Leonard Aff. ¶¶ 3–10 with Am. Answer 4 ¶¶ 1–8 and Def.'s Mem. 2–4.) Additionally, Leonard asserts, without identifying the basis of his knowledge, that "[a]s a result of the conditions at the Premises, Defendant was deprived of its ability to conduct banking operations at the Premises in a continuous manner." (Leonard Aff. ¶ 11.) Such a conclusory assertion is inadmissible in opposition to a summary judgment motion. See Amnesty Am. v. Town of W. Hartford , 361 F.3d 113, 131 n. 12 (2d Cir. 2004) (noting that district court was free to disregard hearsay statements and speculation in affidavits); Wyler v. United States , 725 F.2d 156, 160 (2d Cir. 1983) ("An affidavit ... which does not contain specific facts or is not based on first-hand knowledge is not entitled to any weight."); Baity , 51 F.Supp.3d at 419 ("[The] [a]ffidavit also contains a surfeit of improper averments, including statements not based on [the affiant's] personal knowledge and conclusory statements that are nothing more than speculation."). Similarly, Leonard avers that "it became clear that it would not be possible to...