Opinion
22-CV-9210 (GHW) (JLC)
02-05-2024
JGV APPAREL GROUP, LLC, Plaintiff, v. OMRI ABU, et al., Defendants.
REPORT & RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
To the Honorable Gregory H. Woods, United States District Judge:
Plaintiff JGV Apparel Group, LLC (“JGV” or “plaintiff”) brings this action against Omri Abu (“Abu”), Health Supply 770, Inc. (“Health Supply”), Medical Supply 770, Inc. (“Medical Supply”), and Mineral Beauty 707, Inc. (“Mineral Beauty”) (together, “defendants”), alleging breach of contract, fraudulent inducement, and unjust enrichment as a result of an oral agreement by which Health Supply agreed to pay commissions to JGV for introducing Health Supply to a buyer for its COVID-19 rapid tests. Pending before the Court is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, the motion should be denied.
I. BACKGROUND
A. Factual Background
The parties have submitted memoranda of law, statements of material facts pursuant to Local Civil Rule 56.1, and various records obtained in discovery, which provide the relevant factual background for defendants' motion. Unless otherwise noted, the following facts are undisputed.
See Defendants' Memorandum of Law in Support of Defendants' Motion for Summary Judgment (“Defs. Mem.”), Dkt. No. 40; Defendants' Statement of Undisputed Material Facts (“Rule 56.1 Statement”), Dkt. No. 39-2; Declaration of Joseph Tripodi dated August 14, 2023 (“Tripodi Decl.”), Dkt. No. 41; Tripodi Decl. Ex. 1 (Deposition Transcript of Victor Green (“Green Dep.”)), Dkt. No. 41-1; Tripodi Decl. Ex. 2 (Deposition Transcript of Omri Abu (“Abu Dep.”)), Dkt. No. 41-2; Plaintiff's Memorandum of Law in Opposition to Defendant's Motion (“Pl. Mem.”), Dkt. No. 44; Declaration of Edward S. Antar dated September 13, 2023 (“Antar Decl.”), Dkt. No. 43; Plaintiff's Response to Defendants' Statement of Undisputed Material Facts and Counterstatement of Facts (“Counter Statement”), Dkt. No. 45.
1. The Parties
JGV is an import/export company and broker located in Midtown Manhattan that facilitates the sale of “apparel, cosmetics, textiles, home textiles, blankets, [and] skin care.” Rule 56.1 Statement ¶¶ 1-2 (citations omitted); Green Dep. 11:1813:3. JGV is owned and managed by Saad and Levana Green, parents of Victor Green (“Green”), the third member of JGV (after his parents) who has, for the past eight years, “broker[ed] sales and purchases” for JGV. Id. ¶ 3 (quoting Green Dep. 7:8-10:22, 8:22-9:7). The members of JGV are all alleged to be residents and citizens of the State of New York. Complaint (“Compl.”) ¶ 6, Dkt. No. 1.
Abu, a Florida resident, is a salesperson whose main line of business is the sale of personal protective equipment (“PPE”), which he began selling in late 2020 or early 2021. Abu Dep. 8:2-9:16; Compl. ¶ 11. Abu is also the president of Medical Supply and Mineral Beauty, Abu Dep. 10:2-9, 11:2-8; Compl. ¶¶ 12-13, and a principal of Health Supply. Rule 56.1 Statement ¶ 6 (citing Abu Dep. 13:15-24).
Health Supply buys and sells PPE. Rule 56.1 Statement ¶ 5 (citing Abu Dep. 24:23-26:18). It is alleged to be organized and exists under the laws of the State of Florida with its principal place of business in Panama City, Florida. Compl. ¶ 8. Health Supply was started following the creation of Mineral Beauty, as Abu believed “the [Mineral Beauty] name [didn't] really fit” with PPE sales. Abu Dep. 11:2-16.
Medical Supply is a “shell company” that was created and intended for online sales but was “never used.” Abu Dep. 10:3-22. It is alleged to be organized and exists under the laws of the State of Florida with its principal place of business in Panama Beach, Florida. Compl. ¶ 9.
Mineral Beauty is a company intended to be used for PPE sales but, as noted, was replaced with Health Supply. It is alleged to be organized and exists under the laws of the State of Florida with its principal place of business in Panama Beach, Florida. Id. ¶ 10.
2. The Alleged Broker Agreement And Transaction
In 2021, during the COVID-19 pandemic, Green and JGV “tried to broker and/or sell PPE product” to various parties, including Health Supply. Rule 56.1 Statement ¶ 4 (quoting Green Dep. 14:7-14). As a broker, JGV only introduced Health Supply to a buyer; it was not required to purchase or store COVID-19 tests, make any expenditures, or fulfill any other responsibility. Id. ¶ 12 (citing Green Dep. 29:4-13).
On or about January 4, 2022, Green and Abu had a telephone conversation during which they discussed an arrangement whereby Health Supply would pay JGV a commission for introducing a buyer to Health Supply who would purchase its COVID-19 test kits (also described as “packs” or “packages”). Id. ¶ 7. Under this arrangement, Green would broker COVID tests at a price of $8.50/test and would receive anything above $8.50 as commission. See Green Dep. 27:4-19. While the parties agree that this oral agreement between Green and Abu did not specify an end date, see Rule 56.1 Statement ¶ 14, Green testified that the price per unit “was a fixed price at a specific moment in time” rather than for future sales, and the sale was intended to be completed immediately. Counter Statement ¶ 14 (citing Green Dep. 72:2-19, 72:25, 73:2-25, 73:2-7).
The parties use the terms “kits,” “packs,” and “packages” to describe boxes containing multiple COVID-19 test products. Likewise, the Court will use these terms interchangeably.
Although the parties agree that a 40-test package of COVID-19 tests differs from a 2-test package and has a different wholesale cost, see, e.g., Green Dep. 19:6-16, 20:4-12, they disagree as to whether Green was entitled to a commission equal to any amount over $8.50/test sold regardless of the number of tests in a pack. Compare, e.g., Defs. Mem. at 5-7, with Pl. Mem. at 5-6.
Following the January 4th call, JGV contends that Abu sent Green text messages and images showing a package containing 40 COVID-19 tests for verification purposes. Id. ¶ 8. On January 5, 2022, Abu sent Green an invoice for the sale of COVID tests at a price of $10.00 per test, in packs containing “40 Tests/Box” to be sent to JGV's buyer. Rule 56.1 Statement ¶ 9 (first quoting Tripodi Decl. Ex. 3, at 2, Dkt. No. 43-3 (invoice for $504,000.00); then citing Green Dep. 45:6-23). While JGV contends that the January 5 invoice contained several errors, which it asked defendants to correct, it acknowledged that this invoice reflected the terms of the agreement to sell the product to the buyer JGV had identified, AO Apparel and Karen Wang, at a price of $10.00 per test. Counter Statement ¶ 9 (citing Green Dep. 46:24-25, 47:2-4). These tests were sold to AO Apparel and Karen Wang at the $10.00 per unit price reflected in the January 5 invoice. Id. ¶¶ 10-11, 15, 17 (citations omitted). The sale consisted of five pallets of COVID test packs (wherein each pallet held 7,560 test kits, totaling 15,120 tests per pallet) for a total sale of 75,600 tests. Id. ¶ 18. Per the invoice marked as “paid” on January 18, 2022, this sale amounted to 45,360 test kits at $10.00 per test ($20.00 per kit) totaling $907,200.00. See Antar Decl. Ex. F, at 9, Dkt. No. 43-6. Defendants claim that their cost per unit was $5.70 from their distributor and that if an order was placed in advance and not for an immediate delivery, their cost from their distributor would be cheaper than $5.70. Id. ¶ 16 (citing Abu Dep. 30:2-6, 17-22).
As both parties have submitted many of the same exhibits in their motion papers, the Court will refer to both filings, as appropriate.
Per JGV's Counter Statement of Material Facts, Abu testified that “[d]efendant[s] eventually sold [p]laintiff's buyer a total of 5 pallets of a total of 15,120 tests per pallet (7,560 kits per pallet) for a total of 75,600 covid tests (37,800 test kits) at $10.00 per test ($20.00 per kit).” Counter Statement ¶ 18 (citing Abu Dep. 71-72, 73:2, 78:3-25, 79:2-18).
JGV was paid a commission amount of $6,426.00 by defendants for its services. Id. ¶ 19 (citing Abu Dep. 83:16-84:2). JGV claims it is owed a commission of $139,500.00 “based on the amount of units purchased.” Compl. ¶¶ 37, 48, 51. Notwithstanding the $6,426.00 paid by defendants, JGV still seeks “no less than $139,500” plus fees and costs. Id. ¶ 53.
B. Procedural History
JGV filed the present diversity action on October 27, 2022, bringing claims of breach of contract, fraudulent inducement, and unjust enrichment. Id. ¶¶ 1-2, 4268. On October 31, 2022, this case was referred to me for general pretrial supervision and dispositive motions. Dkt. No. 10. On January 23, 2023, after being referred to the Court's mediation program, Dkt. No. 19, the parties attended an initial mediation conference. A subsequent mediation conference was held on May 8, 2023, but was ultimately unsuccessful. See Dkt. No. 28.
On August 14, 2023, defendants filed their motion for summary judgment, Dkt. No. 39, and attached a supporting memorandum of law and declaration, both of which were refiled as separate docket entries on September 2, 2023. Dkt. Nos. 40-41. Defendants also filed a Rule 56.1 statement on September 2. Dkt. No. 42. JGV then filed opposition papers on September 15, 2023, Dkt. Nos. 43-45, and on September 29, 2023, defendants filed their reply papers. Dkt. No. 46.
II. DISCUSSION
A. Legal Standards
1. Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure “allows a party to seek a judgment before trial on the grounds that all facts relevant to a claim(s) or defense(s) are undisputed and that those facts entitle the party to the judgment sought.” Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (citation omitted). A motion for summary judgment will be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“A dispute about a genuine issue exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor.” Bolling v. City of New York, No. 18-CV-5406 (PGG), 2021 WL 961758, at *4 (S.D.N.Y. Mar. 15, 2021) (quoting Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (internal quotations omitted)). “A moving party can demonstrate the absence of a genuine issue of material fact ‘in either of two ways: (1) by submitting evidence that negates an essential element of the non-moving party's claim, or (2) by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim.'” Id. at *5 (quoting Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017)).
“When considering a motion for summary judgment, the court is not to weigh the evidence but is instead ‘required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.'” Konteye v. N.Y.C. Dep't of Educ., No. 17-CV-2876 (GBD) (RWL), 2019 WL 3229068, at *2 (S.D.N.Y. July 18, 2019) (emphasis added) (quoting Phillips v. DeAngelis, 331 Fed.Appx. 894, 894-95 (2d Cir. 2009) (citation omitted)).
The “mere existence of a scintilla of evidence supporting the non-movant's case is insufficient to defeat summary judgment,” Wentworth Grp. Inc. v. Evanston Ins. Co., No. 20-CV-6711 (GBD) (JLC), 2021 WL 4479576, at *3 (S.D.N.Y. Sept. 30, 2021) (citing Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (cleaned up)), reconsideration denied, 2022 WL 943063 (Mar. 29, 2022), and “the non-moving party may not rely on unsupported assertions, conjecture or surmise.” Guerra v. Trece Corp., No. 18-CV-625 (ER), 2020 WL 7028955, at *2 (S.D.N.Y. Nov. 30, 2020) (citing Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)); see also Ramnaraine v. Merrill Lynch & Co., No. 13-CV-7889 (GHW), 2014 WL 4386733, at *3 (S.D.N.Y. Sept. 5, 2014) (“Mere speculation or conjecture as to the true nature of the facts will not suffice, nor will wholly implausible alleged facts or bald assertions that are unsupported by evidence.” (cleaned up)), aff'd, 613 Fed.Appx. 83 (2d Cir. 2015). Rather, the party opposing summary judgment “must produce admissible evidence that supports its pleadings.” Wentworth Grp., 2021 WL 4479576, at *3 (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968)); see also Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (“[T]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986))); Cuffee v. City of New York, No. 15-CV-8916 (PGG) (DF), 2018 WL 1136923, at *4 (S.D.N.Y. Mar. 1, 2018) (non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . [it] must come forth with evidence sufficient to allow a reasonable jury to find in [its] favor” (cleaned up)).
2. Breach of Contract
In this case, the Court applies New York law because it sits in diversity. See, e.g., Omega Eng'g Inc. v. Omega, S.A., 432 F.3d 437, 443 (2d Cir. 2005); Bos. Sci. Corp. v. N.Y. Ctr. for Specialty Surgery, No. 14-CV-6170 (RRM) (SGM), 2015 WL 13227994, at *2 (E.D.N.Y. Aug. 31, 2015), adopted by 2016 WL 8711378 (Jan. 29, 2016). “To state a claim for breach of contract under New York law, a plaintiff must allege (1) the existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach of contract by the defendant, and (4) damages.” Hudson & Broad, Inc. v. J.C. Penney Corp., 553 Fed.Appx. 37, 38-39 (2d Cir. 2014) (cleaned up). Summary judgment may be appropriate where “the contractual language on which the moving party's case rests is found to be wholly unambiguous and to convey a definite meaning.” Topps Co., Inc. v. Cadbury Stani S.A.I.C, 526 F.3d 63, 68 (2d Cir. 2008); accord Law Debenture Tr. Co. of N.Y. v. Maverick Tube Corp., 595 F.3d 458, 465 (2d Cir. 2010) (“[T]he initial question for the court on a motion for summary judgment with respect to a contract claim is whether the contract is unambiguous with respect to the question disputed by the parties.” (citation omitted)). The ambiguity of a contract provision is a question of law for the court, and ambiguity will be found “where the terms of the contract could suggest more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” Law Debenture Tr. Co., 595 F.3d at 466 (citation omitted). Moreover, whether a contract is barred by the statute of frauds may be decided as a matter of law. See, e.g., Steinborn v. Daiwa Sec. Am., Inc., No. 92-CV-782 (JES) (THK), 1995 WL 761286, at *3 (S.D.N.Y. Dec. 26, 1995) (citations omitted).
Moreover, the parties both briefed the issues presented under New York law. “Where the parties' briefs assume that a particular jurisdiction's law applies, such ‘implied consent . . . is sufficient to establish choice of law.'” In re SKAT Tax Refund Scheme Litig., No. 18-CV-5053 (LAK), 2020 WL 7059843, at *3 n.28 (S.DN.Y. Dec. 2, 2020) (ellipsis in original) (quoting Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 138 (2d Cir. 2000)).
B. Analysis
Defendants argue that all of JGV's claims are barred by the New York statute of frauds as sections 5-701(a)(1) and (a)(10) of the New York General Obligations Law bar recovery of oral contracts that cannot be performed within one year, or are oral broker agreements, respectively. See Defs. Mem. at 11-13. Defendants further contend that JGV's fraudulent inducement claim is duplicative of JGV's breach of contract claim and that its unjust enrichment claim cannot be invoked to circumvent the statute of frauds. Id. at 13-17. JGV counters that (1) because the agreement was able to be performed within one year, no writing is required under the statute of frauds; (2) in the alternative, the invoices, purchase order, and text messages between Green and Abu collectively constitute a writing that satisfies the statute of frauds; and (3) defendants' motion should otherwise be denied because there are genuine disputes of material fact that require a trial. Pl. Mem. at 10-13. As discussed below, JGV has the better of the argument.
1. JGV's Claims Are Not Barred By The Statute Of Frauds
First, plaintiff's claims are not barred by the statute of frauds. The statute of frauds is codified in section 5-701(a) of the New York General Obligations Law, which provides, in relevant part:
Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:
1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime; [or] . . .
10. Is a contract to pay compensation for services rendered in negotiating a loan, or in negotiating the purchase, sale, exchange, renting or leasing of any real estate or interest therein, or of a business opportunity.... “Negotiating” includes procuring an introduction to a party to the transaction or assisting in the negotiation or consummation of the transaction. This provision shall apply to a contract implied in fact or in law to pay reasonable compensation but shall not apply to a contract to pay compensation to an auctioneer, an attorney at law, or a duly licensed real estate broker or real estate salesman.N.Y. Gen. Oblig. Law §§ 5-701(a)(1), (10). As defendants argue that JGV's claims are barred under both section 5-701(a)(1) and section 5-701(a)(10), the Court will address each argument in turn.
a. Because The Oral Agreement Could Have Been Performed Within One Year, A Writing Is Not Required
Defendants claim that because JGV contends in its complaint (and its principal, Green, confirmed in his deposition) that the oral broker agreement had no end date, the agreement is thus indefinite, and requires a writing under the statute of frauds. See Defs. Mem. at 2, 8, 13-14; Compl. ¶¶ 14-20; see also Green Dep. 29:25-30:8 (confirming that agreement did not have end date). JGV responds that the agreement and sale price to its buyer was not indefinite but was instead “fixed” for a specific transaction. See Pl. Mem. at 9-10. Because it was possible for the oral agreement to be completed within one year, the one-year provision of the statute of frauds does not bar JGV's claims.
It is well-established that the statute of frauds is intended to void unwritten agreements that cannot be completed within one year. See N.Y. Gen. Oblig. Law § 5-701(a)(1); Guilbert v. Gardner, 480 F.3d 140, 151 (2d Cir. 2007) (citations omitted). In practice, New York courts have long been loath to construe the one-year provision of the statute of frauds broadly; instead, they interpret the provision narrowly in order “to give effect to oral contracts that are capable of being performed within one year.” Weisse v. Engelhard Mins. & Chems. Corp., 571 F.2d 117, 119 (2d Cir. 1978). Put differently, “full performance by all parties must be possible within a year to satisfy the Statute of Frauds.” Kumaran v. Northland Energy Trading, LLC, No. 19-CV-8345 (MKV) (DCF), 2021 WL 797113, at *6 (S.D.N.Y. Feb. 26, 2021) (cleaned up) (citation omitted). “[W]here performance is possible within one year, however unlikely that may be, the agreement will not be barred by the Statute of Frauds.” Mitchell v. Faulkner, No. 10-CV-8173 (LAP), 2013 WL 150254, at *4 (S.D.N.Y. Jan. 15, 2013) (first citing D & N Boening, Inc. v. Kirsch Beverages, Inc., 63 N.Y.2d 449, 454-55 (1984); then citing Cron v. Hargro Fabrics, Inc., 91 N.Y.2d 362, 371 (1998)), aff'd, 531 Fed.Appx. 136 (2d Cir. 2013)).
On the record before the Court, defendants' argument that JGV intended to purchase or broker COVID tests for indefinite future orders is unpersuasive. As the parties agree, JGV is in the business of procuring items for buyers as well as introducing potential buyers to sellers. See Rule 56.1 Statement ¶¶ 1-2; Counter Statement ¶¶ 1-2. JGV is thus in the business of brokering sales with multiple buyers and sellers, with differing terms and conditions for each sale. See, e.g., Green Dep. 13:7-9 (describing commission and how “every deal is different”). The agreement at issue in this case was for one transaction with one possible buyer- AO Apparel and Karen Wang-not for an indeterminate number of deals, as defendants argue. There is nothing in the record to suggest an intent to enter into such an indefinite agreement.
Defendants' reliance on Santos v. Medina, 417 F.Supp.3d 280 (S.D.N.Y. 2019), is thus misplaced. See Defs. Mem. at 13-14. For one, in Santos, booking agent “Medina alleged that he was exclusively responsible for promoting all of Santos' Puerto Rican concerts, indefinitely, not merely one concert,” 417 F.Supp.3d at 289 (emphasis added), when there was no such representation here. For another, Santos is distinguishable because Medina was unable to corroborate the oral agreement beyond his own testimony whereas here, there are texts and references to phone calls about the transaction, as well as invoices to corroborate Green's testimony. Moreover, Puerto Rican law was applied in Santos instead of the New York statute of frauds. See 417 F.Supp.3d at 285-87 (determining “[a]fter performing its own analysis[] . . . that Puerto Rican law governs the oral agreement” and discussing corroboration).
See, e.g., Dkt. No. 43-5 at 3-4 (“Can my buyer inspect and pay? . . . Can [the buyer] inspect tomorrow 10 o'clock in [Los Angeles]?”); see id. (text from JGV to defendants showing a screenshot of a text with the buyer explaining that the transaction will be direct to the distributor with the buyer asking if they can “inspect and pay?”).
In addition, while it is well-settled that full performance need only be “possible” in order to avoid application of the statute of frauds, a sale actually occurred between defendants and JGV's buyer at the price set forth and agreed to: $10.00 per unit, for which defendants were paid nearly $1 million. See, e.g., Antar Decl. Ex. F, at 9, Dkt. No. 43-6 (January 18, 2022 invoice between AO Apparel and Health Supply marked as “paid” for $950,000.00). Accordingly, because JGV could have been paid its commission on this transaction within a year following the buyer's payment in January 2022, a writing was not required, and the granting of summary judgment would be improper on these grounds.
The January 18, 2022 invoice shows an overpayment of $46,300.00 as AO Apparel paid $950,000.00 (including a $3,500.00 deposit) versus the total invoiced amount of $903,700.00.
b. The Broker Agreement Is Subject To The Statute Of Frauds
Under the statute of frauds, a writing is generally required for any “contract to pay compensation for services rendered in negotiating . . . a business opportunity,” where “‘[n]egotiating' includes procuring an introduction to a party to the transaction or assisting in the negotiation or consummation of the transaction.” N.Y. Gen. Oblig. Law § 5-701(a)(10). As defendants emphasize, “negotiating” has long been understood to mean any “‘contract or agreement for the compensation of a business broker for acting as a ‘finder,' ‘originator' or ‘introducer,' or for assisting in the negotiation or consummation of the transaction.'” Defs. Mem. at 11 (quoting Springwell Corp. v. Falcon Drilling Co., 16 F.Supp.2d 300, 304 (S.D.N.Y. 1998) (citation omitted)); see also Caro Cap., LLC v. Koch, 653 F.Supp.3d 108, 125 (S.D.N.Y. 2023). Accordingly, as the parties agree that there was an oral broker agreement that is subject to § 5-701(a)(10), the Court turns to whether the collection of text messages, purchase order, and invoices sufficiently constituted a writing that would satisfy the statute of frauds.
c. The Text Messages, Purchase Order, And Invoices Taken Collectively Constitute A Writing Under The Statute Of Frauds
JGV contends that the invoices, purchase order, and text messages collectively constitute a writing under the statute of frauds. Pl. Mem. at 11. Defendants reply that this evidence does not substantially contain the whole agreement between the parties and all its material terms and conditions, and so cannot constitute a writing. Defs. Reply at 1-6. As defendants observe, “[t]he primary function of the Statute of Frauds is an evidentiary one; it is intended to ‘guard against the peril of perjury' and ‘prevent the enforcement of unfounded fraudulent claims' by limiting the range of evidence permitted to prove the existence of an agreement that lacks a formal writing.” Id. at 1 (quoting Zhi Zhong Qiu v. Diamond, No. 19-CV-2050 (ER), 2020 WL 978352, at *4 (S.D.N.Y. Feb. 27, 2020) (quoting Springwell Corp., 16 F.Supp.2d at 304)). But courts have also long been concerned with the impact of the statute of frauds on potentially meritorious claims, finding that they “must be careful not to create “a means of avoiding just obligations” or “a cloak of immunity to hedging litigants lacking integrity.” Zhi Zhong Qiu, 2020 WL 978352, at *4 (quoting Morris Cohon & Co. v. Russell, 23 N.Y.2d 569, 574 (1969)). “To those ends, courts have only required that writings set out the essential terms with a ‘reasonable degree of certainty,' and have allowed that they do so either expressly or by reasonable implication.” Id. (citations omitted).
Furthermore, “a series of writings may be read together to satisfy the Statute of Frauds[,] provided that they clearly refer to the same subject matter or transaction, the combination of writings still must contain substantially the whole agreement and all its material terms and conditions.” Wolet Cap. Corp. v. Walmart Inc., No. 18-CV-12380 (LJL), 2021 WL 242297, at *7 (S.D.N.Y. Jan. 25, 2021) (cleaned up). For example, courts have permitted the writing requirement to be satisfied “by some note or memorandum signed by the party to be charged that is adequate to establish an agreement when considered in light of the admitted facts and surrounding circumstances.” Eminah Props. LLC v. Energizer Holdings, Inc., 531 F.Supp.3d 593, 602 (E.D.N.Y. 2021) (citations omitted).
Defendants contend that because JGV's record evidence-text messages, a telephone conversation, two invoices, a purchase order, wire transfers, and Green's testimony-does not collectively contain all the essential terms of the alleged broker agreement, it cannot constitute a writing under the statute of frauds. See Defs. Reply at 2. But courts have denied summary judgment on the grounds that the parties' emails, while “failing to reflect all material terms of the parties' [broker] agreement,” sufficiently “‘establish[ed] . . . the existence of the alleged finder's agreement and its subject matter,” like a set fee or fee range, such that the statute of frauds was satisfied. Case Prop. Servs., LLC v. Columbia Props. Phoenix, L.P., No. 17-CV-3110 (NSR), 2023 WL 2664262, at *13 (S.D.N.Y. Mar. 27, 2023) (quoting Springwell Corp., 16 F.Supp.2d at 305)).
Here too, there is sufficient evidence in the record to establish the existence of a finder's agreement as there are text messages between Green and Abu describing the desired product and introducing/discussing a potential buyer, as well as a purchase order, two invoices (with one marked as “paid”), and multiple wire transfer receipts. For example, JGV provides the following text messages from early January 2022, among others, as exhibits to the Antar Declaration:
• On or about January 4, Abu represented to Green via text message that three pallets of COVID-19 rapid tests totaling 18,600 units were available for pickup at $8.50 per unit. See Antar Decl. Ex. A, at 2, Dkt. No. 43-1 (“50,400[;] 18,600/pallet[;] 3 pallets california[;] Available pick up tomorrow morning[.] Price will be 8.5 [per unit].”); see also Compl. ¶ 21.
• On January 5, Green asked Abu: “Can my buyer inspect and pay[?],” to which Abu replied, “Sure[.] Can he inspect tomorrow 10 o'clock in [Los Angeles]?”
Antar Decl. Ex. E, at 3, Dkt. No. 43-5.
• Green texted Abu a screenshot of an earlier text exchange between Green and the buyer, which read:
Buyer: “That's a great price[.] On the ground[.] Can I inspect and pay?”
Green: “No inspect and pay - ihealth warehouse - icpo - wire -bol ships same or next day shipping included[.]” . . .
Buyer: “Wire direct to ihealth?” JGV: “To distributor[.]”
Id. at 4.
• Abu and Green also had the following exchange on January 5:
Green: “Pls call me[.] My buyer wants to take your ihealth[.]”
Abu: “Call you shortly” . . .
Green: “Do you want to send me an invoice to JGV APPREL [sic] GROUP LLC
1385 broadway 3rd fl
Ny ny 10018
Tel 917-464-4543
Pls include pick up location on invoice[.]”Id. at 7.
As the screenshot of the text messages does not clearly specify the date of the exchange, the Court will use the date alleged in the Complaint in this Report and Recommendation.
Additionally, both parties cite to the following financial documents in the record:
• An invoice dated January 5, 2022, from Health Supply 700 Inc. billed to JGV Apparel Group LLC for $504,000.00 for 40-pack COVID tests totaling 50,400 tests at $10.00 per test. Tripodi Decl. Ex. 3, at 2; Antar Decl. Ex. D, at 2, Dkt. No. 43-4 (same).
• A purchase order for $907,200.00 dated January 14, 2022 (in which Health Supply is listed as the vendor and AO Apparel is listed at the buyer). Antar Decl. Ex. F, at 2.
• A “paid” invoice from Health Supply to AO Apparel dated January 18, 2022, for $907,200, less a $3,500.00 deposit paid by Venmo, totaling $903,700. Id. at 9.
• A January 19, 2022 wire payment from AO Apparel to Health Supply for “Partial Inv#122914.” Id. at 5-6.
• A January 20, 2022 wire payment for $600,000.00 from AO Apparel to Health Supply for “Partial Inv#122914.” Id. at 3-4.
Defendants argue that Health Supply sold five pallets of 2-pack COVID test kits rather than 40-pack test kits (which cost Health Supply significantly more) and for which there was no commission agreement with JGV. See Defs. Mem. at 8-9. But while this argument might impact what, if anything more, is ultimately owed to JGV, it is not persuasive as to whether the text messages and other documents constitute a writing. Health Supply's “paltry profit” on the sale to JGV's customer, Defs. Mem. at 9, does not change the fact that JGV “assist[ed] in the negotiation or consummation of the transaction.” N.Y. Gen. Oblig. Law § 5-701(a)(10). Moreover, “[s]ophisticated parties,” like defendants in the present case, “should ‘reasonably expect[] that such services [such as those provided by JGV] were not to be performed gratuitously,'” Case Prop. Servs., 2023 WL 2664262, at *13 (quoting Shapiro v. Dictaphone Corp., 66 A.D.2d 882, 885 (2d Dep't 1978)), or for mere cents on the dollar, even assuming there was confusion as to the type of COVID test pack the buyer wanted.
While they may not outline all the material terms of the parties' broker agreement, these documents more than sufficiently “‘establish . . . the existence of the alleged finder's agreement and its subject matter.” Case Prop. Servs., 2023 WL 2664262, at *13; see also, e.g., Green Dep. 27:4-19 (agreement terms were “that we were going to broker COVID tests, . . . [defendants] wanted a price of $8.50 a test, and anything above the 8.50 was mine as my brokering, or my commission”); Abu Dep 28:11-20, 39:3-14 (acknowledging that he sent Green a picture of the $8.50 for 40 tests). Accordingly, because JGV has “produce[d] admissible evidence that supports its pleadings,” Wentworth Grp., 2021 WL 4479576, at *3, summary judgment on this ground should be denied as a matter of law. See, e.g., ABA Refinery Corp. v. Republic Metals Refin. Corp., No. 15-CV-8731 (GHW), 2017 WL 4481170, at *4 (S.D.N.Y. Oct. 15, 2017) (“The adequacy of a writing, for purposes of the statute of frauds, ‘must be determined from the documents themselves as a matter of law.'” (citations omitted)).
2. There Are Genuine Disputes Of Material Fact As To JGV's Claims
Having determined that summary judgment is improper on statute of frauds grounds, the Court will briefly address the parties' other arguments. As discussed above, it is the movant's burden to establish the absence of a genuine dispute of material fact, either “by submitting evidence that negates an essential element of the non-moving party's claim,” or “by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim.” Bolling, 2021 WL 961758, at *5. Defendants have done neither here. To the contrary, defendants' only argument on this point is that JGV's testimony is “self-serving.” Defs. Reply at 6 (citing Walker v. Carter, 210 F.Supp.3d 487, 503 (S.D.N.Y. 2016)). But in Walker, the parties' dispute concerned a hand-written contract to pay creator royalties over a 10-year period in exchange for use of a logo that was lost. See 210 F.Supp.3d at 500. While the court held that the contract was unenforceable under the statute of frauds, Walker-like Santos-is distinguishable as there was an alleged, but missing, written contract in that case, and the plaintiff failed to “present [any] evidence of the existence of the writing sufficient to create a triable issue of material fact.” Id. at 501. By contrast, the parties here agree there was an oral agreement, and both parties have submitted text messages, purchase order, and invoices (and corroborative deposition testimony), that collectively contain the terms of the agreement.
Defendants' argument that there are no genuine disputes of material fact for the jury to resolve is thus not persuasive. Defendants contend, for example, that JGV attempts to deceive the Court by attempting to create factual disputes as Green allegedly contradicted his complaint during his deposition. Defs. Reply at 7. The complaint and Green's testimony, however, are not inconsistent as JGV alleges in the complaint that “[t]here was an oral contract between [p]laintiff and [d]efendants,” Compl. ¶ 49, and Green's deposition testimony states only that the text messages were “proof of verification” of an oral contract. Green Dep. 34:2436:1. Similarly, there is a genuine dispute of material fact as to whether the agreement was for 2-pack or 40-pack COVID test kits, and thus a reasonable jury could find in favor of JGV on its breach of contract claim.
Finally, defendants briefly argue that the Court should dismiss JGV's alternative fraudulent inducement and unjust enrichment claims, as the former is duplicative of its breach of contract claim and the latter is barred by the statute of frauds. See Defs. Mem. at 14-17. The Court disagrees. First, and more broadly, defendants' argument ignores that JGV's alternative claims are just that: alternative. JGV's fraudulent inducement and unjust enrichment claims should thus not be dismissed at this stage, particularly given there are genuine disputes of material fact at issue as to each. While they are correct that JGV must not only “show more than the mere failure to perform a non-fraudulent promise” but also “show that defendant[s] made a promise [they] had no . . . present intention of performing,” Defs. Mem. at 14-15 (quoting Rosenthal v. Kingsley, 674 F.Supp. 1113, 1126 (S.D.N.Y. 1987)), defendants ignore the possibility that a reasonable jury could find that JGV has shown both. For example, a jury could find that defendants had no intention of paying JGV in full, given that Abu (1) told Green he had a “commission coming,” which he “believe[d] ... to be 20 to 20,500 [dollars],” Abu Dep. 86-2:6; (2) later denied that Green produced a buyer for him, Id. at 74:17-75:25; and then (3) only paid Green $6,426.00. Id. at 84:2. Lastly, if the other claims are considered duplicative of the breach of contract claim, that is, if they “rel[y] on the same conduct that forms the basis of [JGV's] other claims,” Bermudez v. Colgate-Palmolive Co., No. 21-CV-10988 (JLR), 2023 WL 2751044, at *4 (S.D.N.Y. Mar. 31, 2023) (citations omitted), then they can be dismissed after JGV's case has been presented to the jury.
III. CONCLUSION
For the foregoing reasons, defendants' motion should be denied.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed.R.Civ.P. 6(a), (b), (d). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Gregory H. Woods, United States Courthouse, 500 Pearl St., New York, New York 10007-1312. Any requests for an extension of time for filing objections must be directed to Judge Woods.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).