Hon. Brenda K. Sannes, United States District Judge.
Plaintiff Long Oil Heat, Inc., doing business as Long Energy ("Long Oil"), brings this diversity action against Defendants William Spencer ("William"), Thomas Spencer ("Thomas," together with William, the "Spencers" or the "Spencer Defendants"), North East Freightways, Inc. ("NEF"), and Phillip J. Palker to recover unpaid balances for fuel oil services Long Oil provided to Land-Air Express of New England, Ltd. ("LAE") until May 2016. (Dkt. No. 2). Although the Complaint also named LAE as a defendant, (id.), LAE stipulated to entry of judgment, (Dkt. No. 50), and partial judgment was entered against it in the amount of $ 204,733.58 on December 7, 2018, (Dkt. No. 51). Plaintiff's claims against the remaining Defendants include claims for: (1) breach of contract against NEF (third cause of action), (Dkt. No. 2, ¶¶ 29-33, 62); (2) personal guaranty against Palker (fourth cause of action), (id. ¶¶ 34-36, 62); (3) account stated against NEF and Palker (fifth cause of action), (id. ¶¶ 37-38, 62); (4) improper dissolution against William and Thomas Spencer (sixth cause of action), (id. ¶¶ 39-43, 62);
Plaintiff Long Oil is a New York corporation based in Albany County, New York, that provides fuel oil and other petroleum products to residential and commercial customers. (Dkt. No. 64-20, ¶ 1; Dkt. No. 67-3, ¶ 12). From 2012 to 2016, Long Oil provided LAE, a transportation company, with fuel for its trucks at LAE's Capital Region facility in Colonie, New York. (Dkt. No. 64-20, ¶ 2; Dkt. No. 67-3, ¶ 13). The fuel was stored until needed in a 3000-gallon fuel oil tank owned by Long Oil and maintained by it under a permit from the Town of Colonie. (Dkt. No. 64-20, ¶ 3).
LAE is a Vermont corporation headquartered in Williston, Vermont, and founded in 1990 by Defendant William Spencer and his father. (Id. ¶ 4; Dkt. No. 67-3, ¶ 7; Dkt. No. 64-8, at 18). It operated as a regional transportation company in the "less than truckload" ("LTL") sector in New England, New York, and New Jersey. (Dkt. No. 64-20, ¶ 5; Dkt. No. 67-3, ¶ 7). The LTL sector covers shipments for more than 100 pounds but less than a trailer load, (Dkt. No. 64-8), and generally involves business-to-business transactions and some residential transportation, (id.; Dkt. No. 64-20, ¶ 5). LAE's real estate subsidiary, Land Air Terminals, Inc., owned four of the 13 facilities from which LAE operated—in Williston, Vermont; Windsor, Vermont; Londonderry, New Hampshire; and Pittsfield, Maine. (Dkt. No. 64-20, ¶¶ 6, 40). Defendant Thomas Spencer, William's younger brother, joined LAE in 1993. (Id. ¶ 7). Initially, William's father owned 100% of LAE, but he eventually transferred his ownership interest to his sons, granting each of them a 50% stake. (Id.; Dkt. No. 67-3, ¶¶ 9-10). William became LAE's president, and Thomas held various positions in operations and sales. (Dkt. No. 64-20, ¶ 7).
At the end of 2015, LAE was in a "[h]ighly leveraged" financial situation, having borrowed to acquire a variety of assets. (Dkt. No. 64-8, at 20). After a "thorough audit," the Federal Motor Carrier
William started looking for financial assistance within the industry. (Dkt. No. 64-20, ¶ 8). He received a call from his friend Defendant Philip Palker, the founder of Defendant NEF, a New Hampshire company
After sending that email, William continued to have conversations with Palker and other possible investors about "what any of them would be willing to do to help," and he sent Palker financial information on LAE. (Dkt. No. 64-8, at 27-28). In particular, William was looking for a loan to cover payroll. (Id. at 33). On approximately January 13, 2016, William met with Palker and Dick Anagnost, NEF's co-owner,
The meeting resulted in a January 13, 2016 agreement among Anagnost Investments, Inc., William, Thomas, and LAE, whereby Anagnost Investments agreed to provide LAE a $ 551,657.81 payroll loan secured by commercial mortgages on Land Air Terminals' four real properties and personally guaranteed by William and Thomas. (Dkt. No. 64-7, at 2-3; Dkt. No. 64-20, ¶ 12; Dkt. No. 67-3, ¶¶ 29-30). Additionally, the agreement provided that William and Thomas would "pledge all of their stock interest in Land-Air as collateral for the performance of the personal guaranties" and "convey sixty percent (60%) of their interest in Land-Air to Anagnost [Investments]." (Dkt. No. 64-7, at 2). The parties agreed to "restructure Land-Air such that the board of directors shall be comprised of five (5) individuals," with three individuals appointed by Anagnost Investments and two individuals appointed by William and Thomas. (Id.). Finally, "Dick Anagnost ... shall be, and hereby is, appointed Treasurer of Land-Air and shall have sole and exclusive control over the financial affairs of the corporation with singular authority to execute checks and control all bank account[s] of the corporation." (Id.). He could "only be removed by a unanimous vote of the board of directors." (Id.). According to William,
After the January 13 agreement, Palker and Anagnost's staff began communicating with LAE's lenders, vendors, customers; they also had extensive communications with LAE's comptroller, Melissa Adams, and other employees. (Dkt. No. 64-20, ¶ 14). In his communications with vendors, Palker distinguished between accounts payable that became due before NEF's involvement and those that arose after. (Dkt. No. 64-20, ¶ 15). Using LAE letterhead and signing as its representative, Palker sent letters to vendors stating that, on January 13, 2016, LAE had "entered into an agreement with investors to strategically realign its regional operations" and that "[p]art of the agreement is that all existing vendors must establish a new vendor account with a net 30 day repayment term." (E.g., Dkt. No. 64-7, at 7). Palker further represented that "[a]ll invoices due and payable prior to January 13, 2016 will be reviewed and scheduled for repayment after a 120 day grace period from the date of this letter" and that "[p]ayment terms will be 5 years with a 3.0% interest rate starting 01 May 2016." (Id.).
In communications with fuel vendors, Palker characterized the financial backing of LAE as an investment. (See Dkt. No. 64-17, at 30, 55-58; Dkt. No. 64-7, at 22 (January 19, 2016 email from Palker to fuel vendor F.L. Roberts mentioning Anagnost Investments as an "investor"); id. at 43 (January 26, 2016 email from Palker to fuel provider Goetz Energy, referring to "the acquisition of 60% of [LAE's] stock by North East Freightways along with its investment team, Anagnost Investment[s]")). Similarly, an undated press release on joint LAE and NEF letterhead states that LAE's "recent alignment with... [NEF] and their associated financial investors provided a strong fiscal infusion that allowed Vermont based Land Air Express to regain its dominant share of the Northeast LTL markers." (Dkt. No. 64-7, at 33; see Dkt. No. 64-17, at 28-30).
Palker testified that, at the time that these statements were made, he knew that NEF had not acquired 60% of LAE's stock. (Dkt. No. 64-17, at 55). But, according to his testimony, he still believed as of late March 2016 that a stock purchase arrangement was a possibility, and that the decision to proceed with an asset purchase agreement was made "[s]ometime in April." (Dkt. No. 64-18, at 10). William testified that an asset purchase, instead of a stock purchase, was "discussed from the beginning" as a possibility, "but [it was] not the first choice of route," and the decision to shift to an asset purchase was communicated to him by Palker or Anagnost in March. (Dkt. No. 64-10, at 24-25). At his deposition, however, Anagnost distinguished between loans and investments and stated that he "[n]ever" considered making an investment in LAE after the January 13 agreement. (Dkt. No. 64-13, at 36). Both Palker and Anagnost acknowledged that ultimately no investment was made in LAE. (Dkt. No. 64-15, at 51; Dkt. No. 64-16, at 49).
Palker informed William and Melissa Adams on January 25, 2016 that, starting that day, LAE "will start using NEF accounts for road calls, oils, lubes and fluids for the interim as we rebuild relationships" with vendors. (Dkt. No. 64-7, at 23). Vendor invoices sent to NEF would be emailed to LAE so that LAE could cut checks to the vendor. (Id.). Palker explained
On February 4, 2016, Joseph Bosley, a senior accountant at LAE who was administering payroll, emailed William that Palker "has been making promises to pay on some of these vendors which our cash flow will not be able to sustain and may cause larger issues in the near future," adding, "I think we may need to discuss our script and plan of attack on some of these accounts." (Dkt. No. 64-7, at 21; see Dkt. No. 64-9, at 66). Palker responded, "Which specific customer are you referring to? I'm sure I have sound reasons for each one." (Id. at 20). Bosley replied, "I do not deny that, I just know we will not have the cash to make the payment." (Id.). At his deposition, William stated that Long Oil was on a "very long list" of vendors to which he, Palker, and "a lot of people" at LAE made payment promises that "cash flow would not support."
Palker testified that Melissa Adams sent him a schedule of accounts payable in early February 2016. Asked why LAE employees provided him that information, Palker said that "they were trying to keep the company alive through the due diligence period," and he "needed to find out if we were going to—if Land Air was going to go out of business." (Dkt. No. 64-16, at 47). Discussing what he meant in the previously described press release by a "recent alignment" between LAE and NEF, (Dkt. No. 64-7), Palker explained that "we were trying to keep the company afloat until we could figure out if the company was able to float on its own, and we wanted to make sure that we maintained a solid customer base." (Dkt. No. 64-17, at 29). He was "[t]rying to make it colorful so people" —not only customers but also vendors —"would stay on board with us." (Id.).
Several email chains in early 2016 show that Palker was involved in LAE operations. In a January 14, 2016 email, Palker told a LAE employee that "[p]rior to ordering maintenance parts at ALL locations please put an email request through me." (Dkt. No. 64-7, at 18). About this email, Palker testified: "I didn't tell him yes or no to order them. We just needed to understand where money was being spent so we could keep the company afloat.... [I]f Bill objected, we would have time to tell him not to order it." (Dkt. No. 64-16, at 57). The following day, Palker wrote an email to Melissa Adams, copying his accountant
Anagnost testified that Palker, when "dealing with Land Air Express," was acting on behalf of NEF only in "some capacities." (Dkt. No. 64-14, at 35). And when not acting on behalf of NEF, Palker was acting in "[h]is own [capacity] in helping out his friend Bill Spencer." (Id. at 35-36). Anagnost further elaborated:
(Id. at 36). According to Palker's testimony, neither Anagnost nor William ever told him to stop using his NEF email when communicating to third parties about LAE matters. (Dkt. No. 64-17, at 26).
An employee handbook last updated on April 30, 2016 bears the logos of LAE and NEF and lists William and Palker as co-presidents of "North East Freightways/Land Air Express." (Dkt. No. 64-7, at 47-49). Palker testified that he created the document and "suspect[ed] this was put on the cover of the handbooks" but did not know when. (Dkt. No. 64-18, at 14). Similarly, an undated employment application bears both companies' logos and provides a joint address for "North East Freightways, Inc. & Land Air Express." (Dkt. No. 64-7, at 50). Palker stated that this form was used but did not know when. (Dkt. No. 64-18, at 14-15). Another document relating to the "Health & Safety Program" of "North East Freightways/Land Air Express" bears the two companies' logos; Palker is mentioned as "President North East Freightways/Land Air Express, Inc."
In his affidavit, Long Oil's president, Robert Long, Sr., asserts that he learned of LAE's shutdown "at the very beginning of January" 2016, and William called in mid-January to tell Long that "a friend, Phillip Palker, and his company, [NEF], was going to be investing in Land Air Express." (Dkt. No. 64-1, ¶¶ 8-9). According
Additionally, Long states that he "received a letter from Mr. Palker concerning setting up a new account number for current deliveries with a promise of preferential repayment treatment on the past due balance." (Id.). At his deposition, Palker described his conversation with Long as follows:
(Dkt. No. 64-17, at 35-36).
Long asserts that, when he spoke to Palker in mid-January 2016, he "pressed [Palker] for payment on past due balance under account # 8077 and indicated initially that [he] would only provide current deliveries on a [cash-on-delivery] basis given the past due situation." (Dkt. No. 64-1, ¶ 12). According to Long,
(Id. ¶ 13).
By the end of 2015, LAE owed Long Oil $ 147,000 under the existing account (# 8077). (Dkt. No. 67-3, ¶¶ 13, 15). Long asserts that, based on Palker's representations, Long Oil opened a second account (# 101788) for sales of fuel to LAE after January 13, 2016. (Dkt. No. 64-1, ¶ 14). On January 22, 2016, Palker applied to Long Oil for credit; he signed the credit application form on behalf of LAE and listed Anagnost as the company's owner. (Dkt. No. 64-17, at 41-44; Dkt. No. 64-7, at 136-37). Above Palker's signature, a statement read, "In signing this document, I personally guarantee payment on the above account."
Palker testified that he told Long about his intention that LAE continue to purchase fuel from Long Oil. (Id. at 45). Nevertheless, he acknowledged that he "was setting up backups for everywhere" and authorized Steve Valle, LAE's Albany terminal manager, to apply to the Town of Colonie to replace Long Oil's fuel tank with one provided by Dennis K. Burke. (Id. at 47-49; Dkt. No. 64-7, at 120-33). Palker conceded that he was "going through the permitting process to replace [Long] with Mr. Burke" even while "obtaining fuel on credit from Mr. Long." (Dkt. No. 64-17, at 50-51).
As William testified, Palker or Anagnost informed him at the end of March 2016 that NEF was considering acquiring assets of LAE in exchange for assuming its secured debt. (Dkt. No. 64-10, at 25; Dkt. No. 67-3, at 6). As described by William, through this transaction, LAE would "lose all the assets for the value of the debt."
LAE and NEF entered into an asset purchase agreement that is dated April 2016.
William personally guaranteed some or all the secured debt assumed by NEF, and he testified that his "personal guarantees would remain" after the transaction. (Dkt. No. 64-10, at 32, 35-36). He conceded, nevertheless, that payment on those debts would reduce his exposure under the personal guaranties. (See Dkt. No. 64-9, at 33-34). At his deposition, Anagnost agreed that a reduction of the loan balance would reduce William's exposure on the personal guaranties, but he noted that he "required [the personal guaranties] to stay in place" and that "there would be no release of any personal guarantees as a result of the assignment or assumption." (Dkt. No. 64-14, at 26-27). Palker testified that, since May 2016, LAX or NEF had been paying down debt principal at a level of about $ 200,000 per month. (Dkt. No. 64-18, at 47-48).
According to his affidavit, Long learned that "the May 2016 transaction between Land Air and [NEF] was not a stock sale" but an asset sale "after it was complete and the new operation was ready to switch vendors." (Dkt. No. 64-1, ¶ 18). He only obtained that information when he "pressed Mr. Palker for further payments" on the outstanding accounts. (Id.).
Anagnost Investments' January 13, 2016 loan of approximately $ 550,000 to LAE to cover payroll was memorialized in a promissory note, (see Dkt. No. 64-7, at 78-79), and secured by commercial mortgages on Land Air Terminals' four real properties, (see id. at 94-117).
At his deposition, Anagnost was presented with a chart listing the four facilities previously owned by Land Air Terminals.
Anagnost testified that he acquired "all of the mortgage debt on [LAE's] real estate" assets in April 2016, a few weeks before the asset purchase agreement. (Id. at 19-20). He estimated paying "in excess of $ 6 million" to acquire the debt owed to the two first mortgage holders—BDC of New England and Merchants Bank—and MidCap, including interest, fees, and penalties, (id. at 20-21), although he then clarified that he paid about $ 5.6 million in cash to BDC of New England and MidCap and assumed the $ 400,000 Merchants Bank loan, (id. at 22-24). At the time, the first mortgage holders' loans were in default, (id. at 20), and LAE had failed to make monthly payments on Anagnost Investments' payroll loan. (Dkt. No. 64-13, at 34-35; Dkt. No. 64-15, at 6-8). As part of the acquisition, Anagnost testified that all the mortgages, including the Anagnost Investment mortgages, were assigned to his separate company Santorini Real Estate Holdings, LLC ("Santorini"). (Dkt. No. 64-13, at 14; Dkt. No. 64-15, at 22). However, according to title searches conducted by Plaintiff's counsel in Vermont, New Hampshire, and Maine, there is no record of an assignment of Anagnost mortgages to Santorini. (Dkt. No. 69, at 3-4; see also Dkt. Nos. 69-1 to -3).
Having acquired the real estate debt, Anagnost "explained to [William] that there were two choices." (Id. at 41). "He could go through foreclosure, because we had accelerated the debt as BDC had already accelerated, or we could enter into a deed in lieu of foreclosure and avoid all of that." (Id.). Land Air Terminals ultimately opted for warranty deeds in lieu of foreclosure transferring the Londonderry property and the Williston property to Santorini.
The new entity, LAX, is owned by Anagnost, Palker and his wife, and their accountant Baroody. (Dkt. No. 64-18, at 38). Palker is the president of LAX (doing business as Land Air Express) and manages the business with William and Thomas, who serve as consultants overseeing operations and administration, respectively. (Id. at 41-42). According to Palker's testimony, LAX operates in the same locations as LAE did in May 2016 (except that its Syracuse facility moved to a different location in that city), and it continues to use the same corporate phone number and customer list. (Id. at 43-45). The trailers and power equipment transferred to NEF were not retitled. (Dkt. No. 64-10, at 36; Dkt. No. 64-18, at 29-31). At their deposition, neither William nor Palker knew whether LAX or NEF had filed for authority to do business in New York. (Dkt.
Long Oil has received a judgment against LAE in this action for $ 204,733, which has not been paid despite demand being made. (Dkt. No. 64-20, ¶ 33). This amount includes a $ 32,823.81 balance owed on account # 101788, payment of which Palker agreed to personally guarantee. (Dkt. No. 67-3, ¶ 39; Dkt. No. 64-18, at 53-54). The record shows that, as of December 8, 2017, outstanding trade creditor claims against LAE amounted to $ 588,557.90. (See Dkt. No. 64-7, at 134-35).
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if all the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. A fact is "material" if it "might affect the outcome of the suit under the governing law," and is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2548; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). The movant may meet this burden by showing that the nonmoving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (summary judgment appropriate where the nonmoving party fails to "`come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on' an essential element of a claim" (quoting In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010))).
If the moving party meets this burden, the nonmoving party must "set out specific facts showing a genuine issue for trial." Anderson, 477 U.S. at 248, 250, 106 S.Ct. 2505; see also Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot rely on "mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)). Furthermore, "[m]ere conclusory allegations or denials ... cannot by themselves create a genuine issue of material fact
Plaintiff seeks summary judgment on its claim for breach of contract against Defendant NEF (third cause of action), its claim to recover on a personal guaranty against Defendant Palker (fourth cause of action), and its claim for account stated against Defendants NEF and Palker (fifth cause of action) in connection with the $ 32,823.81 due on account # 101788 for fuel that Plaintiff provided to LAE from January to May 2016.
"To obtain summary judgment to enforce a written guaranty, `all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guaranty.'" 136 Field Point Circle Holding Co., LLC v. Invar Int'l Holding, Inc., 644 F. App'x 10, 11 (2d Cir. 2016) (quoting City of New York v. Clarose Cinema Corp., 256 A.D.2d 69, 71, 681 N.Y.S.2d 251 (1st Dep't 1998)); accord Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. v. Navarro, 25 N.Y.3d 485, 492, 15 N.Y.S.3d 277, 36 N.E.3d 80 (2015). "As a general rule, a guaranty of payment of a note is an absolute undertaking that the borrower will pay the note when due, and that, if the borrower fails to do so, the guarantor will pay, becoming immediately liable on the default of the principal." Kirzner v. Plasticware, LLC, No. 503226/2014, 2015 WL 1723411, at *9-10 (N.Y. Sup. Ct. Apr. 15, 2015), judgment entered, (N.Y. Sup. Ct. 2015).
The guaranty at issue here consists of a single sentence, which is located at the bottom of LAE's application for credit with Long Oil, immediately above Palker's signature. (See Dkt. No. 64-7, at 137 ("In signing this document, I personally guarantee payment on the above account.")). The guaranty to pay does not contain any conditional language. See Citibank, N.A. v. Uri Schwartz & Sons Diamonds Ltd., 97 A.D.3d 444, 446-47, 948 N.Y.S.2d 275 (1st Dep't 2012) (treating as absolute and unconditional a personal guaranty at the end of a loan agreement, which was set off directly above the signature line and where the signing individual "personally agree[d] to the terms of the personal guarantee"). Further, Defendants NEF and Palker do not dispute that Palker signed the guaranty in his individual capacity, and they do not contest the existence of the underlying debt nor the fact that the debt remains outstanding despite demand being made. Accordingly, Plaintiff is entitled to
Plaintiff, on the other hand, has failed to establish that Defendant NEF is liable for breach of contract as a matter of law. Under New York law, the elements of a claim for breach of contract are: (1) an agreement between the plaintiff and the defendant; (2) adequate performance by the plaintiff; (3) breach by the defendant; and (4) damages suffered as a result of the breach. Fischer & Mandell, LLP v. Citibank, N.A., 632 F.3d 793, 799 (2d Cir. 2011). While Plaintiff asserts that Palker, as president of NEF, made promises to Long Oil about pledging NEF's credit for the payment of fuel oil supplied to LAE, (see Dkt. No. 64-19, at 14), Defendants dispute that Palker was acting in his capacity as NEF president during the transition period from January to May 2016. According to Palker's account, he was merely "assisting Bill Spencer, as his friend, from time to time." (Dkt. No. 64-16, at 54). Therefore, there are triable issues of fact about whether NEF agreed to pay for fuel that Long Oil supplied to LAE from January to May 2016. Summary judgment on the third cause of action is accordingly denied.
A claim for account stated has the following elements: "(1) an account was presented; (2) the account was accepted as correct; and (3) the debtor promised to pay the amount stated." Consol. Energy Design Inc. v. Princeton Club of N.Y., 590 F. App'x 115, 116 (2d Cir. 2015). An accounts-stated claim "requires an agreement between the parties to an account based upon prior transactions between them." LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 64 (2d Cir. 1999) (internal quotation marks omitted). "Such an agreement may be implied if a party receiving a statement of account keeps it without objecting to it within a reasonable time or if the debtor makes partial payment." Id. (internal quotation marks omitted). "Whether a bill has been held without objection for a period of time sufficient to give rise to an inference of assent, in light of all the circumstances presented, is ordinarily a question of fact, and becomes a question of law only in those cases where only one inference is rationally possible." Schwing Elec. Supply Corp. v. Infinity Power Elec. Contracting Inc., No. 10-42353, 2013 WL 3227786, at *4, 2013 N.Y. Misc. LEXIS 2632 at *10 (N.Y. Sup. Ct. June 18, 2013).
Defendant Palker testified that he asked LAE's vendors to send their bills to Anagnost's office in Manchester, New Hampshire, and that the bills would then be forwarded to LAE's comptroller, Melissa Adams. (Dkt. No. 64-17, at 8-12). The record further shows that a statement of account # 101788 was presented to "Land Air Express c/o Anagnost Investments." (Dkt. No. 64-7, at 138-40). This evidence, however, does not incontrovertibly establish that the statement was delivered to Defendant NEF and Defendant Palker, that they accepted it as correct, and that they promised to pay the amount stated. At his deposition, Palker was not aware that LAE had conceded the balance due on account # 101788, did not "know if it's inaccurate," and did not "know who did the reconciliation for this." (Dkt. No. 64-18, at 53). Asked whether he was "prepared" to pay the money to Plaintiff, he responded in
In the Complaint, Plaintiff asserts as its sixth cause of action a claim against the Spencer Defendants "for the economic value they received from [NEF] in connection with the sale of assets of Land Air Express due to improper dissolution." (Dkt. No. No. 2, at 17). Plaintiff seeks summary judgment on this claim, (Dkt. No. 64), arguing that LAE has been "informally" dissolved because it "has transferred all of its assets to [NEF], it no longer conducts business, and it is no longer paying its existing debts," (Dkt. No. 64-19, at 15).
To begin with, the Court notes that, for its improper-dissolution claim, Plaintiff relies on the right of creditors of an insolvent company to sue directors and officers for mismanagement, as recognized in Gladstone v. Stuart Cinemas, Inc., 2005 VT 44, ¶ 27, 178 Vt. 104, 878 A.2d 214 (2005).
To prevail on summary judgment, Plaintiff must establish as a matter of law not only that the Spencers owed a fiduciary duty to Plaintiff because LAE was or became insolvent as a result of the May 2016 asset sale, but also that they breached their fiduciary duties of care, good faith, or loyalty to Plaintiff. Generally, any alleged breach of a fiduciary duty by a director or officer is a question for the trier of fact. 3 Fletcher Cyc. Corp. § 837.50; see also id. § 1030. And here, the parties dispute the factual predicates of the alleged breach. Plaintiff asserts that the Spencers acted in their own personal interest to maintain their managing roles in the business (albeit as consultants) and reduce their exposure on their personal guaranties to secured creditors. (See Dkt. No. 64-7, at 63, 69-74 (asset purchase agreement and consulting agreements providing that the Spencers would be retained as consultants and compensated at $ 218,400 per year); Dkt. No. 64-9, at 33-34 (Anagnost acknowledging that payment on the secured debts assumed by NEF would reduce the Spencers' exposure under the personal guaranties); Dkt. No. 64-18, at 47-48 (Palker testifying that the secured debt balances were being reduced at a pace of about $ 200,000 per month)). The Spencer Defendants, on the other hand, claim that they entered into the asset sale transaction to save William's "life's work" and prevent the "unemployment of all the people" who had worked for them. (Dkt. No. 64-10, at 25-26). Thus, even assuming that the May 2016 asset sale rendered LAE insolvent, there are triable issues of fact whether the Spencers breached any fiduciary duty owed to Plaintiff. Summary judgment on the improper-dissolution claim must accordingly be denied.
Plaintiff asserts as its seventh cause of action a claim for fraudulent conveyance against all remaining Defendants. (Dkt. No. 2, at 17). Plaintiff moves, and Defendants NEF and Palker cross-move, for summary judgment on that claim. (Dkt. Nos. 64, 67). Plaintiff and Defendants NEF and Palker have proceeded on the assumption that New York law applies, (see Dkt. No. 64-19, at 17-21; Dkt. No. 73, at 14-19), while the Spencer Defendants conclusorily assert that Vermont law controls instead, (see Dkt. No. 75-1, at 15). This Court sitting in diversity applies New York's choice-of-law rules. Chau v. Lewis, 771 F.3d 118, 126 (2d Cir. 2014). Fraudulent conveyance is a conduct-regulating tort. Atsco Ltd. v. Swanson, 29 A.D.3d 465, 466, 816 N.Y.S.2d 31 (1st Dep't 2006). For such torts, "the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders." Cooney v. Osgood Mach., Inc., 81 N.Y.2d 66, 72, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993). Under New York
The New York Debtor and Creditor Law ("DCL") distinguishes between conveyances that are actually fraudulent, see N.Y. Debt. & Cred. Law § 276, and those that are constructively fraudulent, see id. §§ 273-275. Whereas actual fraud under DCL § 276 focuses on the transferor's actual intent, constructive fraud under DCL §§ 273-275 is premised on a lack of fair consideration. See United States v. McCombs, 30 F.3d 310, 328 (2d Cir. 1994). When a conveyance is determined to be fraudulent as to a creditor, the creditor may, "as against any person except a purchaser for fair consideration without knowledge of the fraud at the time of the purchase," have the conveyance "set aside ... to the extent necessary to satisfy [the creditor's] claim." Id. § 278(1)(a).
DCL § 276 defines as actually fraudulent "[e]very conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors." The party seeking to set aside the conveyance must prove actual intent by clear and convincing evidence. McCombs, 30 F.3d at 328. The "issue of intent is normally a question of fact under New York law." Id.
Because direct proof of actual intent is rare, a plaintiff may "rely on so-called `badges of fraud' to prove his case," which "are circumstances so commonly associated with fraudulent transfers that their presence gives rise to an inference of intent." Ray v. Ray, 108 A.D.3d 449, 451, 970 N.Y.S.2d 9 (1st Dep't 2013). Courts have recognized the following nonexclusive list of badges of fraud: (1) a close relationship between the parties to the transfer; (2) inadequacy of the consideration; (3) the transferor's knowledge of the creditor's claim and the transferor's inability to pay it; (4) the transferor's retention of control of the property after the transfer; (5) the fact that the transferred property was the only asset sufficient to pay the transferor's obligations; (6) the fact that the same attorney represented the transferee and transferor; and (7) a pattern or course of conduct by the transferor after it incurred its obligation to the creditor. A & M Glob. Mgmt. Corp. v. Northtown Urology Assocs., P.C., 115 A.D.3d 1283, 1288, 983 N.Y.S.2d 368 (4th Dep't 2014); see also Wall St. Assocs. v. Brodsky, 257 A.D.2d 526, 529, 684 N.Y.S.2d 244 (1st Dep't 1999) (including as a badge of fraud "a questionable transfer not in the usual course of business").
In its opposition to Defendants NEF and Palker's motion, Plaintiff cites record evidence for some of the badges of fraud. (See Dkt. No. 70, at 10-11). According to Palker's and Anagnost's deposition testimony, LAE President William was a friend of NEF President Palker, which indicates a close relationship between the parties to the conveyance. (Dkt. No. 64-16, at 54-56; see also Dkt. No. 64-14, at 35-36). Additionally, there is evidence that, before the asset sale, William and some of LAE's employees knew that LAE's cash flow would not suffice to pay vendors. (See
Plaintiff invokes DCL §§ 273 and 275 for his constructive fraud claim. (See Dkt. No. 64-19, at 21). Under DCL § 273, "[e]very conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration." Under DCL § 275, "[e]very conveyance made and every obligation incurred without fair consideration when the person making the conveyance or entering into the obligation intends or believes that he will incur debts beyond his ability to pay as they mature, is fraudulent as to both present and future creditors." According to the statutory definition, a "person is insolvent when the present fair salable value of [its] assets is less than the amount that will be required to pay his probable liability on his existing debts as they become absolute and matured." N.Y. Debt. & Cred. Law § 271(1). "The burden of proving both insolvency and the lack of fair consideration is upon the party challenging the conveyance, and the determination of insolvency or what constitutes fair consideration is generally one of fact to be determined under the circumstances of the particular case."
A recipient of property gives fair consideration for the property if: (1) the recipient either conveys property or satisfies an antecedent debt in exchange for the property received; (2) the property conveyed or the antecedent debt satisfied is "a fair equivalent" for the property received, and (3) the exchange is "in good faith." N.Y. Debt. & Cred. Law § 272; see also Sharp Int'l Corp. v. State St. Bank & Tr. Co. (In re Sharp Int'l Corp.), 403 F.3d 43, 53 (2d Cir. 2005). "To show fair equivalent value, neither mathematical precision nor a penny-for-penny exchange is required." Chen v. New Trend Apparel, Inc., 8 F.Supp.3d 406, 448 (S.D.N.Y. 2014) (internal quotation marks omitted). A court assessing fair equivalent value must "compare the rough values of what was given and what was received in exchange." Id. at 448-49.
New York courts have stressed that the "good faith of both transferor and transferee is ... an indispensable condition in the definition of fair consideration" under DCL § 272. Stout St. Fund I, L.P. v. Halifax Grp., LLC, 148 A.D.3d 744, 748 (2d Dep't 2017) (quoting Julien J. Studley, Inc. v. Lefrak, 66 A.D.2d 208, 213, 412 N.Y.S.2d 901 (2d Dep't), aff'd, 48 N.Y.2d 954, 425 N.Y.S.2d 65, 401 N.E.2d 187 (1979)) (reversing dismissal of a claim for constructive fraudulent conveyance, where a creditor alleged that a mortgagor did not transfer mortgages to a third party in good faith because the mortgagor "was a participant in the mortgage fraud scheme of which [the creditor] was a victim"); accord Sardis v. Frankel, 113 A.D.3d 135, 142, 978 N.Y.S.2d 135 (1st Dep't 2014); Mega Pers. Lines, Inc. v. Halton, 9 A.D.3d 553, 555, 780 N.Y.S.2d 409 (3d Dep't 2004). In Southern Industries, Inc. v. Jeremias, the court recognized that the lack of good faith could be shown by: (1) the lack of "an honest belief in the propriety of the activities in question"; (2) "intent to take unconscionable advantage of others"; and (3) "intent to, or knowledge of the fact that the activities in question will hinder, delay, or defraud others." 66 A.D.2d 178, 183, 411 N.Y.S.2d 945 (2d Dep't 1978).
Despite the above general guidelines, good faith can be "an elusive concept in New York's constructive fraud statute." Sharp, 403 F.3d at 54 (noting that "[i]t is hard to locate that concept in a statute in which the issue of intent is irrelevant" (internal quotation marks omitted)). The Second Circuit, however, has provided additional guideposts for special situations, like the one here, involving preferred-creditor transferees. A crucial principle in these situations is that "a mere preference between creditors does not constitute bad faith" because, while fraudulent conveyance law aims to ensure that "the debtor uses his limited assets to satisfy some of his creditors," "it normally does not try to choose among them." Id. at 54 (internal quotation marks omitted). Accordingly, an exchange can be in good faith even if it constitutes a preferential repayment of preexisting debts to a transferee-creditor; the transferee knows that the transferor is preferring him over other creditors; and the preferred transferee knows that the transferor was insolvent. Id. (citing Ultramar Energy Ltd. v. Chase Manhattan Bank, N.A., 191 A.D.2d 86, 90-91, 599 N.Y.S.2d 816 (1st Dep't 1993)). The Sharp court identified one exception to this transferee-creditor principle—when "the transferee is an officer, director, or major shareholder of the transferor," i.e., an insider. Id. (quoting Atlanta Shipping Corp. v. Chem. Bank, 818 F.2d 240, 249 (2d Cir. 1987)) ("distinguishing a New York case finding bad faith where a transferor paid an antecedent debt to an outsider,
Additionally, in HBE Leasing Corp. v. Frank (HBE Leasing I), the Second Circuit explained that, where "a transferee has given equivalent value in exchange for the debtor's property, the statutory requirement of `good faith' is satisfied if the transferee acted without either actual or constructive knowledge of any fraudulent scheme." 48 F.3d 623, 636 (2d Cir. 1995). As the court elaborated in Sharp, what matters is the transferee's knowledge of fraudulent conduct tainting the conveyance itself—not "the transferee's knowledge of the source of the debtor's monies." 403 F.3d at 55-56 (remarking that "New York fraudulent conveyance law ... is primarily concerned with transactions that shield company assets from creditors, not the manner in which specific debts were created"); accord 30 N.Y. Jur. 2d Creditors' Rights § 389 ("A creditor of an insolvent debtor must stop at securing his or her debt, and if the creditor has knowledge of the debtor's fraudulent purpose in making the preference, such preference will be avoided in favor of other creditors.").
The Court turns first to the issue of LAE's insolvency and inability to pay debts as they matured. Defendants NEF and Palker point out that Plaintiff has not disclosed an expert to testify whether the May 2016 asset sale rendered LAE insolvent, and they maintain that Plaintiff cannot carry its burden of proof at trial without an expert. (Dkt. No. 64-17, at 20-22; Dkt. No. 73, at 17 n.7). That contention is not persuasive in the circumstances of this case. Neither authority cited by Defendants holds that expert testimony is always required on the issue of insolvency; further, those cases did not involve a situation, like the present one, where a debtor conveyed all or substantially all its assets to another entity. See Lawson v. Ford Motor Co. (In re Roblin Indus., Inc.), 78 F.3d 30, 38 (2d Cir. 1996) (stating, in a case involving the valuation of a business at the time of a preferential transfer, that a determination of insolvency under the Bankruptcy Code should be based on expert testimony "whenever possible"); Union Bank of Switzerland v. Deutsche Fin. Servs. Corp., No. 98-cv-3251, 2000 WL 178278, at *11, 2000 U.S. Dist. LEXIS 1481, at *30 (S.D.N.Y. Feb. 16, 2000) (determining that a debtor was not insolvent under the terms of an agreement between creditors, made under Illinois law, to finance the debtor's inventory purchases).
From the asset purchase agreement and the deposition testimony, there is evidence suggesting that the asset sale deprived LAE of any valuable personal property and left it only with worthless assets. (See Dkt. No. 64-7, at 56; Dkt. No. 64-10, at 27 (William testifying that, under the asset purchase agreement, he would "lose all the assets for the value of the debt"); Dkt. No. 64-15, at 30 (Anagnost testifying that, "on the face of it," the asset sale would leave LAE without sufficient assets to run a transportation business); Dkt. No. 64-18, at 22-24 (Palker testifying that the transaction would effectively leave LAE with no assets and no money)). Further, it would not be beyond the ken of a jury to find that LAE's "tax returns, tax records, rights to tax refunds" and "insurance policies," (Dkt. No. 64-7, at 56), would not be sufficient or available to cover its trade debt obligations, (see Dkt. No. 64-7, at 134-35 (showing a balance of nearly $ 600,000 in trade creditor claims as of
Defendants NEF and Palker contend that the transaction was not constructively fraudulent because the consideration for the sale of the LAE's personal assets was the assumption of the secured debt listed in the schedule of encumbrances, and the release of an antecedent debt is fair consideration. (See Dkt. No. 67-17, at 18-20; Dkt. No. 73, at 16-19). An "assumption of and agreement to pay" an antecedent debt generally constitutes fair consideration for property conveyed.
Defendants argue that "Land Air and NEF's shareholders and directors did not overlap before, during, or after they entered into the APA." (Dkt. No. 73, at 18). Plaintiff, however, has raised a triable issue of fact concerning the insider status of Defendants NEF and Palker. Given Palker's management role at LAE in the period preceding the asset sale, (see, e.g., Dkt. No. 64-7, at 14-18 (emails in which Palker instructs LAE employees on paying certain vendor accounts, ordering parts, and paying employee pension and health insurance contributions)), a reasonable juror could find that Palker was an insider at LAE. Chen, 8 F.Supp.3d at 425, 439 (finding
In its motion for summary judgment, Plaintiff argues that the circumstances surrounding the asset sale warrant imposing successor liability. (See Dkt. No. 64-19, at 22-24). As an initial matter, the Court notes that successor liability does not constitute an independent cause of action but is merely a theory of recovery on an underlying liability. See City of Syracuse v. Loomis Armored US, LLC, 900 F.Supp.2d 274, 290 (N.D.N.Y. 2012) (explaining that "`successor liability' is not a separate cause of action but merely a theory for imposing liability on a defendant based on the predecessor's conduct"); see also In re Motors Liquidation Co., 590 B.R. 39, 63 (S.D.N.Y. 2018) ("By definition, successor liability claims derive from the liability of the predecessor entity."); Payamps v. M & M Convenience Deli & Grocery Corp., No. 16-cv-4895, 2018 WL 3742696, at *10 (E.D.N.Y. May 18, 2018) ("Of course, a seller must have liability in the first place for the Court to analyze whether [successor liability] exceptions would apply."). Thus, in this case, the question is whether NEF, as the successor entity, can be liable for LAE's contractual obligation to pay Plaintiff for debts due and owing. Plaintiff and Defendant NEF both agree that New York law applies, (Dkt. No. 64-19, at 12; Dkt. No. 67-17, at 11), and the Court will assume likewise, see Golden Pac. Bancorp v. FDIC, 273 F.3d 509, 514 n.4 (2d Cir. 2001).
"Under both New York law and traditional common law, a corporation that purchases the assets of another corporation is generally not liable for the seller's liabilities." New York v. Nat'l Serv. Indus., Inc., 460 F.3d 201, 209 (2d Cir. 2006). Successor liability, however, applies in four situations: "(1) [the buyer] expressly or impliedly assumed the predecessor's tort liability, (2) there was a consolidation or
The parties dispute whether continuity of ownership is present in this case. As discussed above, the stock purchase agreement raises factual questions about NEF's status as a shareholder of LAE prior to the asset sale. Based on this record, the Court cannot rule as a matter of law that Plaintiff established continuity of ownership. Conversely, summary judgment cannot be entered in favor of Defendant NEF, as Plaintiff has raised triable issues of fact about fraudulent conveyance, thus triggering the fourth exception to the no-successor-liability rule.
Plaintiff asserts as its eighth and last cause of action a claim for unjust enrichment against Defendants NEF and Palker. (Dkt. No. 2, at 15-17).
(Dkt. No. 64-19, at 25). Defendants NEF and Palker respond that the unjust enrichment claim fails because plaintiff cannot prove successor liability. (See Dkt. No. 73, at 20). Whatever the merit of that defense, it is unavailing since successor liability cannot be decided on the present record. (See supra Part IV.D).
For this claim, Plaintiff cites Farash v. Sykes Datatronics, Inc., which is based on reliance, a quasi-contract theory. 59 N.Y.2d 500, 505, 465 N.Y.S.2d 917, 452 N.E.2d 1245 (1983) (holding that a promisee "who has not conferred a benefit may not obtain restitution" but may nevertheless recover if it performed in reliance on a defendant's promise and suffered a detriment as a result). Indeed, Plaintiff equates its claim with the quasi-contract remedy of quantum meruit. (See Dkt. No. 64-19, at 25). The Court may thus analyze this claim "as a single quasi contract claim." Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir. 2005) (citing cases explaining that "quantum meruit and unjust enrichment are not separate causes of action," that "unjust enrichment is a required element for an implied-in-law, or quasi contract, [claim]," and that "quantum meruit, meaning `as much as he deserves,' is one measure of liability for the breach of such a contract").
To recover on a quasi-contract claim, a plaintiff must show: "(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services." Id. (quoting Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 69 (2d Cir.2000) ). There is no question that LAE accepted Plaintiff's services and stipulated to judgment on the breach-of-contract claim against it.
For these reasons, it is hereby
