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DOCUMENT ELECfRONICALLY FILED
08-Civ-7694 (BSJ)
Plaintiff Sotheby's, Inc. ("Plaintiff" or "Sotheby's")
brings this suit against Halsey Minor ("Defendant" or
"Minor") seeking damages for breach of contract.
Specifically, Sotheby's Complaint alleges three breach of
contract claims relating to the sale of three paintings:
(1) "Diamond Dust Shoes," by Andy Warhol, (2) "Carriage in
Winter," by Childe Hassam, and (3) "The Peaceable Kingdom
with the Leopard of Serenity" ("Peaceable Kingdom"), by
Edward Hicks. Minor asserts eight affirmative defenses and
counterclaims for rescission of contract as to Carriage in
Winter and Peaceable Kingdom.
Before the Court are several motions. For the reasons
set forth below, (1) Sotheby's Motion for Partial Summary
Judgment (Docket Item 35) on its first claim and dismissing
Minor's claim under New York City Department of Consumer
Affairs ("DCA") regulations is GRANTEDi (2) Minor's Motion for Partial Summary Judgment (Docket Item 54) on Sotheby's second and third claims is DENIEDi (3) Sotheby's Motion In Limine (Docket Item 51) to exclude testimony by expert witnesses proffered by Minor in support of his Motion for Partial Summary Judgment is DENIED AS MOOTi (4) Sotheby's Motion for Summary Judgment (Docket Item 52) on its second and third claims and dismissing all of Minor's remaining defenses and counterclaims is GRANTEDi and (5) Minor's Motion to Strike (Docket Item 69) material submitted by Sotheby's in support of its summary judgment reply is DENIED AS MOOT.
A. Procedural History
Sotheby's commenced this action against Minor on September 2, 2008 alleging that Minor had contracted to purchase three works of art from Sotheby's, but never paid the amounts due under the contracts. (Complaint ("Compl.") , dated Sept. 2, 2008 (Docket Item 1)). Minor originally asserted a counterclaim for reformation of the contract for purchase of Peaceable Kingdom, or, in the alternative, for rescission of the contract, as well as nine affirmative defenses. (Def.'s Answer, Countercl., and Jury Demand, dated September 22, 2008 (Docket Item 6).)
One month after Sotheby's commenced this action, Minor brought an action against Sotheby's in the Northern District of California alleging, inter alia, breach of fiduciary duty and violation of the New York General Business Law ("N.Y. Gen. Bus. Law") Section 349.
(California Compl., attached as Ex. A to Decl. of Lee A.
Weiss in Supp. of Def.'s Mot. for Leave to File Am. Answer, Countercls., and Jury Demand ("Weiss Decl. in Supp. of Am. Answer"), ~~ 37-47, 51-65.) In an Order dated January 6, 2009, this Court granted Sotheby's motion to enjoin prosecution of the California action because the two cases involved the same parties and issues and the New York action was filed first. (Order, dated Jan. 6, 2009 (Docket Item 25).) The following day, the California Court granted Sotheby's motion to dismiss for the same reasons. (Order, dated Jan. 7, 2009, Weiss Decl. in Supp. of Am. Answer, Ex.
On April 9, 2009, Minor filed a Motion for Leave to File an Amended Answer, Counterclaims, and Jury Demand ("Motion to Amend"). (Docket Item 30.) Minor sought to (1) amend his original counterclaim to seek rescission rather than reformation with respect to Peaceable Kingdom, (2) add a new counterclaim for rescission of contract for purchase of Carriage in Winter, and (3) add new counterclaims for
breach of fiduciary duty and violation of N.Y. Gen. Bus. Law Section 349. Sotheby's opposed amendment only with respect to the new counterclaims for breach of fiduciary duty and violation of Section 349. (Sotheby's Opp'n to Def.'s Mot. for Leave to Am., dated May 12, 2009 (Docket Item 38) at 1.)
On May 12, 2009, Sotheby's filed its Motion for Partial Summary Judgment. Sotheby's filed its Motion for Summary Judgment on all remaining claims, in conjunction with its Motion In Limine, on July 31, 2009. On the same day, Minor filed his Motion for Partial Summary Judgment on Sotheby's second and third claims. On October 23, 2009, Minor filed his Motion to Strike to exclude material Sotheby's submitted in support of its summary judgment reply. All these motions are fully briefed and decided in this opinion.
In an Order dated October 26, 2009, Magistrate Judge Henry Pitman decided Minor's Motion to Amend. Judge Pitman denied Minor's motion to add counterclaims for breach of fiduciary duty and violation of N.Y. Gen. Bus. Law Section 349 and granted the motion to amend in all other respects. See Sotheby's Inc. v. Minor, 2009 U.S. Dist. LEXIS 99332 (S.D.N.Y. 2009). Minor filed no objections to Judge Pitman's Order.
1. Sotheby's First Claim for Relief
Sotheby's First Claim for Relief in this action is based
on Minor's agreement to purchase an artwork known as
"Diamond Dust Shoes" by Andy Warhol. (Sotheby's Stmt. of
uncontested Material Facts Pursuant to Local Rule 56.1 in
Supp. of its Mot. for Partial Summ. J. ("Sotheby's PSJ 56.1
Stmt.") ,1; Def. Halsey Minor's Resp. to Sotheby's, Inc.'s
Stmt. of Uncontested Material Facts Pursuant to Local Rule
56.1 ("Minor's Resp. to Sotheby's PSJ 56.1 Stmt.") ,1.)
Minor was the high bidder for Diamond Dust Shoes at a
Sotheby's May 15, 2008 Contemporary Art Morning Auction
(the "May 15, 2008 Auction"). 2 (Id.) Sotheby's catalogue
for that auction includes "Conditions of Sale" that form
the contract among Sotheby's, the consignors of items sold
in that auction, and the buyers of those items. (Sotheby's
PSJ 56.1 Stmt. '2; Minor's Resp. to Sotheby's PSJ 56.1
Stmt. ,2.)
Prior to the May 15, 2008 Auction, Minor inspected
Diamond Dust Shoes, which was on exhibit at Sotheby's when
Minor and his wife attended a Sotheby's auction on February
1 The following facts are undisputed unless otherwise noted.
2 The parties do not dispute that Minor "agreed to buy" Diamond Dust Shoes, though this is an issue in dispute with regard to Carriage in Winter and Peaceable Kingdom. (Sotheby's SJ 56.1 Stmt. ~23i Minor's Resp. to Sotheby's SJ 56.1 Stmt. ~23.)
14, 2008. (Sotheby's PSJ 56.1 Stmt. ~3 i Minor's Resp. to Sotheby's PSJ 56.1 Stmt. ~3.) Minor made the successful or high bid for Diamond Dust Shoes during the May 15, 2008 auction in the amount of a "hammer price" of $250,000.
(Sotheby's PSJ 56.1 Stmt. ~4i Minor's Resp. to Sotheby's PSJ 56.1 Stmt. ~4.) Pursuant to the Conditions of Sale, Minor agreed that the total purchase price would also include a buyer's premium. (Sotheby's PSJ 56.1 Stmt. ~5i Minor's Resp. to Sotheby's PSJ 56.1 Stmt. ~5.) As provided in the Conditions of Sale, the buyer's premium is 25% of the hammer price up to and including $20,000 and 20% of any amount in excess of $20,000 up to and including $500,000.
(Id.) The buyer's premium for Minor's purchase of Diamond Dust Shoes, based on the $250,000 hammer price, was $51,000. (Sotheby's PSJ 56.1 Stmt. ~6i Minor's Resp. to Sotheby's PSJ 56.1 Stmt. ~6.)
On May 19, 2008, Sotheby's sent Minor an invoice, at Minor's San Francisco address, for the total purchase price of $301,000 for Diamond Dust Shoes. (Id.) In the cover letter that accompanied the invoice, Sotheby's tendered Diamond Dust Shoes to Minor by notifying him that, "You can pick up your property or arrange for it to be collected. Alternatively, we can arrange for your property to be shipped to you. please complete and return the shipping
instruction form within 30 days." (Sotheby's PSJ 56.1 Stmt. ~7i Minor's Resp. to Sotheby's PSJ 56.1 Stmt. ~7.)
The shipping instruction form Sotheby's sent with the invoice advised Minor, among other things, that he would not have to pay California sales tax if he directed shipment of Diamond Dust Shoes to a location outside California. (Sotheby's PSJ 56.1 Stmt. ~8i Minor's Resp. to Sotheby's PSJ 56.1 Stmt. ~8.)
The Conditions of Sale provide that auction buyers will immediately pay the full purchase price for items they have purchased. (Sotheby's PSJ 56.1 Stmt. ~9i Minor's Resp. to Sotheby's PSJ 56.1 Stmt. ~9.) Prior to the May 15, 2008 Auction, however, Minor requested, and Sotheby's agreed, that Minor could take 90 days (until August 13, 2008) to pay if he purchased Diamond Dust Shoes. (rd.) When Sotheby's invoiced Minor for Diamond Dust Shoes, it also sent him a form he was required to sign and return in order to modify the Conditions of Sale and provide for 90 days for payment. (rd.) Minor never returned the signed form and the requirement for immediate payment for Diamond Dust Shoes was never modified. (rd.)
To date, Minor has paid nothing to Sotheby's on account of his successful bid for Diamond Dust Shoes. (Sotheby's PSJ 56.1 Stmt. ~10i Minor's Resp. to Sotheby's PSJ 56.1
Stmt. ~10.) Pursuant to the Conditions of Sale, Minor agreed that, if he did not make timely payment, Sotheby's could impose ~from the date of sale a late charge of the annual percentage rate of Prime +6% of the total purchase price." (Sotheby's PSJ 56.1 Stmt. ~11; Minor's Resp. to Sotheby's PSJ 56.1 Stmt. ~11.) As of May 12, 2009, the late charge owed by Minor is $30,653.92 and is increasing on a daily basis. (rd.)
Pursuant to the Conditions of Sale, Minor also agreed that, if he defaulted in fulfilling any of the Conditions of Sale, including the requirement for payment of the total purchase price, he would be liable for Sotheby's ~legal fees and expenses, collection fees and incidental damages." (Sotheby's PSJ 56.1 Stmt. ~12; Minor's Resp. to Sotheby's PSJ 56.1 Stmt. ~12.)
Sotheby's resold Diamond Dust Shoes in a public auction in May 2009 for $218,500. (Reply Decl. Jonathan A. Olsoff (~Olsoff Reply Decl."), dated June 22, 2009, ~2.) 2. Sotheby's Second and Third Claims for Relief
Sotheby's Second and Third Claims for Relief are for breach of contract relating to, respectively, Carriage in Winter and Peaceable Kingdom. (Sotheby's Stmt. of Uncontested Material Facts Pursuant to Local Rule 56.1 in Supp. of its Mot. for Summ. J. (~Sotheby's SJ 56.1 Stmt.")
~1; Def. Halsey Minor's Resp. to Sotheby's, Inc.'s Stmt. of Uncontested Material Facts Pursuant to Local Rule 56.1 ("Minor's Resp. to Sotheby's SJ 56.1 Stmt.") .1.) Minor inspected both pieces prior to the May 22, 2008 American Paintings Auction (the "May 22, 2008 Auction") in which the two paintings were sold. (Sotheby's SJ 56.1 Stmt. ~3; Minor's Resp. to Sotheby's SJ 56.1 Stmt. ~3.) During the auction, Minor made successful bids of $3.5 million for Carriage in Winter and $8.6 million for Peaceable Kingdom. (Sotheby's SJ 56.1 Stmt. ~3; Defendant's Answer,
Counterclaim and Jury Demand ("Am. Answer") ~19.)
Sotheby's Auction catalogue for the May 22, 2008 Auction also contained "Conditions of Sale." (Sotheby's SJ 56.1 Stmt. ~2; Minor's Resp. to Sotheby's SJ 56.1 Stmt. ~2.) Applying those conditions, the total purchase price, inclusive of the buyer's premium, amounted to $3,961,000 for Carriage in Winter and $9,673,000 for Peaceable Kingdom. (Sotheby's SJ 56.1 Stmt. ~3.) Minor disputes Sotheby's claim that he agreed to buy Carriage in Winter and Peaceable Kingdom because "Sotheby's had significant economic interests in the artworks at issue, which it failed to disclose in violation of its own representations and guidelines, as set forth in its catalogue, and in violation of applicable law." (Minor's Resp. to Sotheby's
SJ 56.1 Stmt. ,1.) As a result, Minor claims there were no agreements by him to purchase the paintings. (Id.)
On May 27, 2008, Sotheby's invoiced Minor for both paintings. (Sotheby's SJ 56.1 Stmt. ~5; Minor's Resp. to Sotheby's SJ 56.1 Stmt. ,5.) The Conditions of Sale require auction buyers to pay immediately after the auction. (Sotheby's SJ 56.1 Stmt. ,5; Minor's Resp. to Sotheby's SJ
56.1 Stmt. '5.) When Sotheby's invoiced Minor, it sent a terms letter to provide him with 90 days to pay for the paintings. (Id.) In the same letter, Sotheby's advised Minor that it would release the paintings to him when he made payment. (Sotheby's SJ 56.1 Stmt. ,5; Minor's Resp. to Sotheby's SJ 56.1 Stmt. ,5.) Minor has not paid anything to Sotheby's for either Carriage in Winter or Peaceable Kingdom. (Sotheby's SJ 56.1 Stmt. ,4; Minor's Resp. to Sotheby's SJ 56.1 Stmt. '4.)
Carriage in Winter was resold in a May 21, 2009 auction for a total purchase price of $2,322,500. (Sotheby's SJ 56.1 Stmt. ,7; Minor's Resp. to Sotheby's SJ 56.1 Stmt. ,7.) Sotheby's notified Minor and the Court that Peaceable Kingdom was resold in February 2010, for a purchase price of 7 million.
Pursuant to the Conditions of Sale, Sotheby's could impose a "late charge" at the rate of "Prime + 6% of the
total purchase price." (Sotheby's SJ 56.1 Stmt. ~8i Minor's Resp. to Sotheby's SJ 56.1 Stmt. ~8.) Sotheby's claims that as of July 31, 2009, Minor owes late charges of over $467,000 for Carriage in Winter and over $1.1 million for Peaceable Kingdom. (Sotheby's SJ 56.1 Stmt. ~8.) Sotheby's also claims that Minor agreed that he would pay Sotheby's "legal fees and expenses." (rd.) Minor disputes that he owes anything. (Minor's Resp. to Sotheby's SJ 56.1 Stmt.
~8. )
3. Minor's Dealings with Sotheby's and Mitchell
Dara Mitchell ("Mitchell") is the head of Sotheby's American Paintings Department and has been a Sotheby's employee for more than twenty-four years. (Sotheby's SJ 56.1 Stmt. ~9i Minor's Resp. to Sotheby's SJ 56.1 Stmt.
~9.) Although Minor had met Mitchell previously, they had not communicated for many years before Minor emailed Mitchell on February 23, 2008 to ask for help in buying 18th and 19th Century American art. (rd.) From February to May 2008, Minor and Mitchell exchanged emails regarding various pieces of artwork of potential interest to Minor.
(Declaration of Dara Mitchell in Supp. of Sotheby's Mot. for Summ. J. ("Mitchell Decl."), dated July 29, 2009, Exs. 1,2,3,5.) Minor participated in the May 22, 2008 auction by telephone and was on the phone with Mitchell at all
times when he was bidding. (Sotheby's SJ 56.1 Stmt. ~35; Minor's Resp. to Sotheby's SJ 56.1 Stmt. ~35.)
4. Sotheby's May 22, 2008 Auction Catalogue
It is undisputed that the Sotheby's May 22, 2008 Auction catalogue included a section entitled "Buying at Auction. II (Def.'s Stmt. of Undisputed Material Facts Pursuant to Local Rule 56.1 in Supp. of Mot. for Partial Summ. J. on PI.'s Second and Third Causes of Action ("Def.'s 56.1 Stmt. in Supp. of PSJ") , ~ 21; Resp. to
Def.'s 56.1 Stmt. in Supp. of PSJ ~ 21.) That section includes a "Symbol Key," which explained the meaning of certain symbols that may, presumably, appear in the catalogue. (Def.' s 56.1 Stmt. in Supp. of PSJ ~ 22; Resp. to Def.'s 56.1 Stmt. in Supp. of PSJ, ~ 22; See Decl. Lee A. Weiss Supp. Def.'s Opp'n Sotheby's Mot. for Summ. J and Sothbey's Mot. In. Limine ("Weiss Decl. Opp'n to Sotheby's Mot. for Summ. J."), Ex. 34.) The Symbol Key describes Sotheby's use of the triangle symbol as follows: "6. Property in which Sotheby's has an ownership interest. Lots with this symbol indicate that Sotheby's owns the lot in whole or in part or has an economic interest equivalent to an ownership interest." (Id.) In the catalogue, Sotheby's did not place a 6. next to either Carriage in Winter or
Peaceable Kingdom. (Def.'s 56.1 Statement in Supp. of PSJ ~ 25; Resp. to Def.'s 56.1 Statement in Supp. of PSJ, ~ 25.) 5. Sotheby's Agreement with the Owner of Carriage in Winter
On February 29, 2008, Sotheby's, its affiliate, Sotheby's Financial Services ("SFS") and the owner of Carriage in Winter, the Gilbert A. Harrison Trust (the "Harrison Trust") entered into a Loan and Consignment Agreement ("the Harrison Agreement"). (Sotheby's SJ 56.1 Stmt. ~53; Minor's Resp. to Sotheby's SJ 56.1 Stmt. ~53.) Pursuant to the Harrison Agreement, SFS loaned $5.85 million to the Harrison Trust and was granted a collateral interest, for repayment of the loan, in approximately 50 art works, including Carriage in Winter. (rd.)
The Harrison Agreement gave SFS "the rights, powers and privileges of a secured party under the New York Commercial Code." (Sotheby's SJ 56.1 Stmt. ~55; Minor's Resp. to Sotheby's SJ 56.1 Stmt. ~55.) The agreement did not transfer ownership of any collateral. (rd.) The Harrison Trust warranted that it was the "sole and absolute owner of the Property." (rd.) Sotheby's was granted the right to offer the property for sale included in the Harrison Agreement. (rd.) The Harrison Agreement did not provide that SFS's collateral interest satisfied any part of the loan, which could be satisfied only by payment.
(Sotheby's SJ 56.1 Stmt. ~56j Minor's Resp. to Sotheby's SJ 56.1 Stmt. ~56.) SFS was secured by collateral with a total value between $9 million and almost $14 million. (rd.) SFS was also entitled to full recourse against the borrower, whose obligation to repay was "absolute and unconditional" and was "not subject to the results of the auction of the Property." (Id.) The Harrison Agreement also provided that, if the borrower defaulted, SFS could sell the collateral, apply the proceeds to the loan debt, and pay over any surplus to the borrower. (Sotheby's SJ 56.1 Stmt. ~57j Minor's Resp. to Sotheby's SJ 56.1 Stmt. ~57.)
6. Sotheby's Agreement with the Owner of Peaceable Kingdom Sotheby's interests in Peaceable Kingdom arise from an
August 2005 Secured Promissory Note and Security Agreement (the "Esmerian Loan Agreement"), in which SFS agreed to lend $11,574,650 to the owner, Ralph Esmerian ("Esmerian") (Sotheby's SJ 56.1 Stmt. ~59; Minor's Resp. to Sotheby's SJ 56.1 Stmt. ~59.) Esmerian pledged over 300 items of collateral, including Peaceable Kingdom, as security for the loan. The collateral had a total value from $22,149,300 to $33,425,000. (Id.) The Esmerian Loan Agreement did not transfer title to the collateral to SFSj nor give SFS any right to sell the collateral in the absence of a default; and it did not give SFS any benefit of an increase in the
collateral value. (Sotheby's SJ 56.1 Stmt. ~60 i Minor's
Resp. to Sotheby's SJ 56.1 Stmt. ~60.) In the Esmerian Loan
Agreement, Esmerian, as owner, granted SFS \\\a continuing
security interest' in his right, title and interest ... in
and to the Collateral." (Sotheby's SJ 56.1 Stmt. ~61i
Minor's Resp. to Sotheby's SJ 56.1 Stmt. ~61.) The Esmerian
Loan Agreement provides that, when the loan to Esmerian is
repaid, SFS's "security interest in the Collateral will
terminate." (Id.)
Esmerian failed to make required loan payments in
(Sotheby's SJ 56.1 Stmt. ~63i Minor's Resp. to
Sotheby's SJ 56.1 Stmt. ~63.) Although SFS advised him in
January 2008 that the loan was in default, SFS did not
exercise its right as a secured lender to compel an
involuntary sale of collateral. (Id.) Instead, SFS,
Sotheby's, Esmerian and the American Folk Art Museum3
negotiated a February 2008 agreement that provided for a
private sale of Peaceable Kingdom, followed by a public
auction if the private sale proved unsuccessful (the
"Esmerian Consignment Agreement"). (Id.) In the Esmerian
Consignment Agreement, Esmerian warranted to Sotheby's "and
3 At the time SFS entered into the Esmerian Loan Agreement, it also entered into an agreement with the American Folk Art Museum. (Sotheby's SJ 56.1 Stmt. ~62.) Esmerian made a promised gift of all of the collateral to the Museum, subject to SFS's security interest. (Id.) The Museum has the right to repay the loan and redeem the collateral if Esmerian defaulted. (Id.)
the purchaser" that he was "the sole and absolute owner of the Property and [had] the right to consign the Property for sale." (Id.) Aspects of the sale of Peaceable Kingdom were negotiated and agreed upon with Esmerian, including
(i) the sequence of a private sale followed by a public auction, which Esmerian demanded; (ii) the $10 million bid amount for the private sale; (iii) the $5 million auction reserve; (iv) the auction estimates; and (v) payments by auction buyers on any terms other than the immediate payment required by the Conditions of Sale. (Sotheby's SJ 56.1 Stmt. ~64; Minor's Resp. to Sotheby's SJ 56.1 Stmt. ~64.) Sotheby's also sought Esmerian's consent to allow Minor 90 days to pay if he turned out to be the high bidder for Peaceable Kingdom. (Id.) And SFS agreed that, if Peaceable Kingdom were sold, the loan would not be in default and the date for repayment would be extended. (Id.) II. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure ("Fed.
R. Civ. P.") provides that a court shall grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c).
"The party seeking summary judgment
bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). The substantive law governing the case will identify those facts that are material and ~[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477
u.s. 242, 248 (1986).
In determining whether a genuine
issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
~If, as to the
issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
The same standard of review applies when the court is faced with cross-motions for summary judgment. Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001). Each party's motion must be reviewed on its own merits, and
the Court must draw all reasonable inferences against the party whose motion is under consideration. Id.
Sotheby's first claim for relief is based on Minor's purchase of Diamond Dust Shoes during the May 15, 2008 Auction and his subsequent failure to pay the purchase price. Under the governing UCC provisions, Sotheby's seeks to recover the purchase price Minor agreed to pay for Diamond Dust Shoes. Sotheby's seeks summary judgment in its favor for the purchase price, plus interest charges, attorneys' fees and expenses, all of which are provided for in the parties' contract. Minor has not moved for summary judgment in its favor on this claim.
In responding to Sotheby's request for summary judgment on its first claim for relief, Minor has not disputed that he is liable, or that Sotheby's is entitled to damages predicated on the amount Minor agreed to pay, plus interest at the contract rate and attorneys fees. Minor's only objection is that Sotheby's damages recovery should be reduced based on the amount Sotheby's has received from the resale of Diamond Dust Shoes. (Def. Halsey Minor's Mem. of Law in Opp'n to Pl.'s Mot. for Partial Summ. J. ("Minor's Opp'n to Sotheby's PSJ") at 16-
17.) Sotheby's does not dispute this issue. (Reply Mem. of Law in Supp. of Sotheby's Motion for Partial Summary Judgment ("Sotheby's PSJ Reply") at 2.) As Sotheby's moving papers acknowledge, if Sotheby's "chooses to sell Diamond Dust Shoes, it must credit Minor for the net proceeds of the sale." (Sotheby's PSJ Mot. at 17.) Sotheby's received payment for the resale of Diamond Dust Shoes on May 20, 2009. (Olsoff Reply Decl. ~ 2.) After giving Minor credit for the full proceeds of the resale, he owes Sotheby's $82,500, in principal. (rd. at ~~ 2-4.)
As the parties agree that there is no genuine issue of material fact with respect to Minor's liability on the first claim, Sotheby's motion for summary judgment is GRANTED on the first claim in the amount of $82,500, plus interest, late charges and attorneys' fees.
Sotheby's second and third causes of action are for breach of contract based upon Minor being the highest bidder at Sotheby's May 22, 2008 auction for Carriage in Winter and Peaceable Kingdom.
Minor argues that Sotheby's is not entitled to summary judgment on its second and third claims for relief because 1) Sotheby's had a duty to disclose its significant economic interests in Carriage in Winter and Peaceable
Kingdom, based on multiple common law and statutory principles; and 2) Minor has provided substantial evidence concerning the materiality of Sotheby's economic interests in the artworks. (Def.'s Opp'n to Sotheby's SJ Mot. at 19 - 20.) Minor's nondisclosure defense is pled in Minor's counterclaims, which seek rescission, rather than affirmative relief. Minor also asserts eight affirmative defenses which he claims bar Sotheby's recovery.
In addition to the arguments made in his opposition to Sotheby's summary judgment motion, Minor filed a motion for partial summary judgment on these claims in which he contends that contracts between the parties were never formed.
The Court finds that none of Minor's arguments have merit.
1. Sotheby's Duty to Disclose
In Minor's opposition to Sotheby's summary judgment motion, Minor identifies four alleged sources of Sotheby's duty to disclose: (1) Sotheby's fiduciary duty; (2) the superior knowledge possessed by Sotheby's concerning its interests in the works; (3) the partially misleading statement in the auction catalogue concerning Sotheby's use of the triangle symbol; and (3) relevant DCA regulations.
(Minor's Opp'n to Sotheby's SJ Mot. at 29.)
A. Sotheby's Fiduciary Duty
For the same reasons Judge Pitman found it would be
futile to assert a counterclaim for breach of fiduciary
duty, the Court finds that Minor's argument that Sotheby's
had a fiduciary duty to disclose its interests in the
paintings fails. The Court agrees with Judge Pitman that
(1) Minor does not properly allege the existence of a
fiduciary duty, (2) Minor has not pled an injury with
particularity as required by Rule 9(b) of the Federal Rules
of Civil Procedure,4 and (3) Minor fails to identify how
Sotheby's failure to disclose its interests is material.
B. Sotheby's Superior Knowledge
Minor argues that even in the absence of a fiduciary
duty, Sotheby's had a duty to disclose its interests
because the facts concerning its interests were exclusively
within its control and its superior knowledge rendered the
transactions inherently unfair.
"'When dealing with a claim of fraud based on material
omissions, it is settled that a duty to disclose arises
only when one party has information that the other party is
4 A breach of fiduciary duty claim based on fraud must be pled with particularity as required by Rule 9(b) of the Federal Rules of civil Procedure. Adelphia Recovery Trust v. Bank of Am., N.A., 624 F. Supp. 2d 292, 319 (S.D.N.Y. 2009) (McKenna, J.) (citing Frota v. PrudentialBache Sees., Inc., 639 F. Supp. 1186, 1193 (S.D.N.Y. 1986) ("Rule 9(b) extends to all averments of fraud or mistake, whatever may be the theory of legal duty - statutory, common law, tort, contractual, or fiduciary"); Abercrombie v. Andrew Call., 438 F. Supp. 2d 243, 274 (S.D.N.Y. 2006) (Karas, J.).
entitled to know because of a fiduciary or other similar relation of trust and confidence between them.'" Creative
Waste Mgmt. v. Capitol Envtl. Servs., 429 F. Supp. 2d 582 (S.D.N.Y. 2006) (quoting Travelers Indem. Co. of Ill. v. CDL Hotels USA, Inc., 322 F. Supp. 2d 482, 499 (S.D.N.Y. 2004)) (quoting United States v. Szur, 289 F.3d 200, 211 (2d Cir. 2002)). Where parties are involved in an arms length commercial transaction, there is no fiduciary duty to disclose information absent specific circumstances, such as the application of the "special facts doctrine." Id.; see Mid-Island Hosp., Inc. v. Empire Blue Cross and Blue Shield
(In re Mid-Island Hosp., Inc.), 276 F.3d 123, 130 (2d Cir. 2002). Under this doctrine, the courts impose a duty on a party with "superior knowledge of essential facts" to disclose those facts where nondisclosure would make the transaction inherently unfair. Travelers Indem., 322 F. Supp. 2d at 499. For this doctrine to be applicable, "the plaintiff must prove that \ (1) one party has superior knowledge of certain information; (2) that information is not readily available to the other party; and (3) the first party knows that the second party is acting on the basis of mistaken knowledge.'" Id. (quoting Banque Arabe Et Internationale D'Investissement v. Md. Nat'l Bank, 57 F.3d
146,155 (2dCir. 1995)).
Minor has not presented sufficient evidence to establish that Sotheby's knew Minor was acting on the mistaken belief that Sotheby's had no security interests in the paintings.
with respect to Peaceable Kingdom, Minor's only argument is based on a March 31, 2008 email he sent to Mitchell. The email states in relevant part: "I hear the Hicks guy is really in need of cash. I went to Williamsburg and saw 8 or so hicks spoke with the curator and some others and I think there is the possibility its not going to see 5." (Weiss SJ Decl., Ex. 20.) Minor testified in his deposition that his statement, "I hear the Hicks guy is really in need of cash," was actually a question that should have elicited a response describing Sotheby's relationship with "the Hicks guy," i.e., Ralph Esmerian. (Reply Decl. Howard B. Comet Supp. Sotheby's Mot. Summ. J. ("Comet Reply Decl."), Ex. 1 at 110-11.) That testimony is the only basis for Minor's contention that Sotheby's had the requisite knowledge that he was acting on a mistaken belief. (Minor Opp' n to Sotheby's SJ Mot. at 31- 32. )
Even giving Minor the benefit of every rational inference derived from the email and the testimony, the Court does not find this to be sufficient evidence of Minor's claim to overcome Sotheby's motion for summary
judgment. Sotheby's argues that on its face, Minoris email statement is not a question, but rather a declarative statement of information Minor had obtained, which appears from the email to be only one part of the information he had learned, including that (i) "I know he [the Hicks guy] intends to get rid of it [Peaceable Kingdom], and (ii) "the possibility its not going to see 5," i.e., that the auction bidding for Peaceable Kingdom might not reach even $5 million. It is undisputed that Minor did not follow up on this issue with Mitchell, which Sotheby's claims would be expected if the statement had really been a question and was significant to Minor.
Moreover, Mitchell testified that she did not understand Minoris statement about "the Hicks guy" to be a question and, consequently, she did not respond. (Mitchell Decl. ~23.) Mitchell further testified that in her 24 years with Sotheby's, no auction bidder has ever asked her if Sotheby's had made a loan to a consignor or had collateral interest in an auction item. (Id. at ~25.) Minor testified in his deposition that, aside from whatever may appear in his email to Mitchell, he never asked her about the owner of Peaceable Kingdom or about Sothebyls arrangements with the owner. (Comet Reply Decl., Ex. 1 at 119.)
Most importantly, even under Minor's reading, there is nothing in the email that indicates to an objective reader that Minor was operating under the belief that Sothebyrs had no security interest in Peaceable Kingdom. Even if the email is interpreted as a question, the email is an inquiry about Esmerian's financial condition, not Sotheby's interests in the painting. Under the case law, Minor must offer evidence that Sotheby's believed he was basing his decision about whether or how much to bid on Peaceable Kingdom on a mistaken understanding about the matter that was undisclosed.
With respect to Carriage in Winter, Minor makes no argument and offers no evidence to establish that Sotheby's thought Minor had a mistaken belief about its interests in this painting. To the contrary, Minor admits that he "did not have any discussion with Mitchell or Sotheby's about Sotheby's arrangements with the owner of Carriage in Winter." (Minor Resp. at 23 .32.) Thus, Minor's "special facts" claim must be DISMISSED as to both paintings.
c. Sotheby's Misleading Statement
Minor argues that Sotheby's auction catalogue was misleading because it states that Sotheby's uses a triangle symbol for lots in which it has an "economic interest equivalent to an ownership interest," but Sotheby's did not
apply that symbol to Carriage in Winter and Peaceable Kingdom. Sotheby's argues that it has not made any misrepresentation. Sotheby's claims that the purpose of the catalogue language about "an economic interest equivalent to an ownership interest" was not to use the triangle symbol for collateral interests, but only for joint venture transactions in which Sotheby's acquired essentially all of the interests of an owner of certain art works. (Sotheby's SJ Mot. at 40.)
It is undisputed that the Sotheby's catalogue for the May 22, 2008 Auction did not display a triangle symbol - which would indicate that Sotheby's had an economic interest equivalent to an ownership interest - next to
either Carriage In Winter or Peaceable Kingdom.
56.1 Statement in Supp. of PSJ ~ 25; Resp. to Def.'s 56.1 Statement in Supp. of PSJ, ~ 25.) Minor argues that Sotheby's expects potential bidders to rely upon the language in the catalogue regarding the triangle symbol. (Def.'s PSJ Mot. at 8.)
The threshold issue and that in dispute, then, is whether Sotheby's had an "economic interest equivalent to an ownership interest" in both artworks. Minor relies on provisions of Sotheby's loan and consignment agreements with the owners of Carriage in Winter and Peaceable Kingdom
to argue that Sotheby's did. (Def.'s PSJ Mot. at 8-9.) Sotheby's contends that it had "plain vanilla" security agreements with the owners and that these agreements only granted security interests - interests that are not equivalent to ownership interests as a matter of law and do not require disclosure as defined by the Symbol Key.
(Sotheby's Mem. of Law in Opp'n to Minor's Mot. for Partial Summ. J. at 22-24; Sotheby's SJ Mem. at 18-22, 41-43). The Court agrees with Sotheby's.
In Endico Potatoes, Inc. v. CIT Group/Factoring, Inc., 67 F.3d 1063 (2d Cir. 1995), the Second Circuit analyzed several economic issues to decide whether the defendant obtained an ownership interest or no more than a security interest in a dealer's account's receivable. The Court
stated that the analysis depends on the substance of the relationship between the contracting parties, and not simply the label attached to the transaction. Id. at 1068. In determining the substance of the transaction, the Court considered a number of factors:
the right of the creditor to recover from the debtor any deficiency if the assets assigned are not sufficient to satisfy the debt, the effect on the creditor's right to the assets assigned if the debtor were to pay the debt from independent funds, whether
the debtor has a right to any funds recovered from the sale of assets above that necessary to satisfy the debt, and whether the assignment itself reduces the debt.
Id. at 1068 (citing authorities). As the Second Circuit explained, the root of all of these factors is the transfer of risk. Where the lender has purchased the accounts receivable, the borrower's debt is extinguished and the lender's risk with regard to the performance of the accounts is direct, that is, the lender and not the borrower bears the risk of non-performance by the account debtor. If the lender holds only a security interest, however, the lender's risk is derivative or secondary, that is, the borrower remains liable for the debt and bears the risk of non-payment by the account debtor, while the lender only bears the risk that the account debtor's non-payment will leave the borrower unable to satisfy the loan.
Applying the criteria cited here, it is clear that Sotheby's had only a security interest in Carriage in Winter and Peaceable Kingdom. Because Sotheby's loans were oversecured and were full recourse loans, it had the right to recover any deficiency if the paintings were sold for
amounts that were insufficient to satisfy the debts.5 Both
consignors also had the right to pay their loan debts at
any time and from any source, which would terminate
Sotheby's interest in the paintings.6 If the paintings were
sold for more than the debt, then Sotheby's had to pay the
surplus to the consignors.7 And the grant of each security
interest did not by itself satisfy any of the loan debt,
which could be satisfied only by actual repayment.8 Under
5See Secured Promissory Note and Security Agreement ("Esmerian Loan Agreement"), Aug. 18, 2005, Attach. to Weiss Declo in Opp'n to Sotheby's Mot. for Summ. J., Ex. 3 at 6 (stating, "[Esmerian] shall remain fully liable for any deficiency following any sale of any or all of the Collateral") i See Loan and Consignment Agreement between SFS (Sotheby's Financial Services) and James A Harrison and Maurice S.
Spanbock, Esq., CO-Trustees of the Gilbert A. Harrison Trust ("Harrison Agreement"), Weiss Decl. Ex. 12 at 3 (stating, "If the balance of the net proceeds of the Property's sale is insufficient to repay the outstanding balance of the Loan, with interest, when due, you will pay [Sotheby's] any deficiency without further notice").
6 See Esmerian Loan Agreement, Weiss Decl. Ex. 3 at 7 (stating, "Upon repayment of the principal amount hereof in full with accrued interest and payment of all other amounts due Sotheby's hereunder, Sotheby's security interest in the Collateral will terminate.") i See Harrison Agreement, Weiss Decl. Ex. 12 at 3 (stating, "Sotheby's will return the unsold Property to [the Trust] if the outstanding balance of the Loan, with interest, if any, has been paid in fulL")
7 See Esmerian Loan Agreement, Weiss Declo Ex. 3 at 11 (stating, "The sale proceeds of any auction or private sale ... will be applied first to pay accrued interest on the Loan, second to repay principal of the Loan, and third, any excess will be paid to [Esmerian]") i See Harrison Agreement, Weiss Declo Ex. 12 at 3 (stating, "Sotheby's will deliver to [the Trust] the remaining balance of the net proceeds, if any.")
8 See Esmerian Loan Agreement, Weiss Declo Ex. 3 at 3 (stating, "The obligations of [Esmerian] hereunder are absolute and unconditional and the payment of any amounts due hereunder shall not be subject to the results of any sale of the Collateral or to any defenses, set-offs or counterclaims of any kind whatsoever.") i See Harrison Agreement, Weiss Decl. Ex. 12 at 10 (stating, "The payment of any amounts due to SFS and Sotheby's hereunder shall not be subject to any defenses, setoffs or counterclaims of any kind whatsoever. [The Trust's] obligation to repay the Loan and accrued interest thereon is absolute and unconditional and is not subject to the result of the auction at Property.")
Endico, therefore, Sotheby's interests were not equivalent
to ownership interests.
Moreover, factors other than those cited in Endico
further indicate that Sotheby's did not possess ownership
interests in the two paintings. The owners expressly
represented and warranted in their respective agreements
with Sotheby's that they were the sole owners of the
collateral items9; nothing in the agreements purports to
transfer ownership or any of the risks or benefits that
define ownership interests; and the collateral and
foreclosure rights that were granted to Sotheby's are the
normal rights of a secured party under the Uniform
Commercial Code.
This analysis is not changed, with respect to
Peaceable Kingdom, by the fact that Sotheby's notified
Esmerian that his loan was in default. Sotheby's did not
exercise its rights as a secured creditor to compel an
involuntary sale of the painting, but rather negotiated a
consignment agreement with Esmerian that provided for
9See Esmerian Loan Agreement, Weiss Decl. Ex. 3 at 7 (stating, "[Esmerian] is, and has been for at least ninety days prior to the date hereof, the sole and absolute owner of each item of the Collateral ... and a buyer of any item of the Collateral will obtain good title to such item."); See Harrison Agreement, Weiss Declo Ex. 12 at 4 (stating, "You represent and warrant to SFS, Sotheby's and the purchaser of any Property that ... At the time of the consignment of the Property to Sotheby's [the Trust is], the sole and absolute owner of the Property.")
eliminating the default.1o But even if Sotheby's had
enforced its rights as a secured creditor, that would not
have given it an ownership interest. A secured creditor who
repossesses property does not become the owner and does not
have the same control over a sale as an owner.ll The owner
retains the right to pay the debt and redeem the property.
ucc ~ 9-623. And the creditor does not (i) have the benefit
of any surplus proceeds above the debt (which must be paid
to the owner under UCC § 9-615(d)) or (ii) incur a loss if
the property sells for less than the debt where, as here,
the loan is secured by additional collateral and is a full
recourse loan.
Minor contends that the agreements provided
Sotheby's with "economic benefits" equivalent to ownership
rights because the agreements provided for Sotheby's to
10 See Letter Agreement between Esmerian, SFS, and Sotheby's regarding the Peaceable Kingdom ("Esmerian Loan Agreement"), Weiss Decl. Ex. 7.
11 As stated in a leading treatise, "Default gives the secured creditor the right to possession, but the [UCC Article 9] scheme assumes that the [borrower] remains the owner-debtor even after possession. Thus, the secured party in possession must use reasonable care in the custody and preservation of collateral ... must hold non-cash proceeds of the collateral as additional security and must apply cash proceeds to the debt or remit them to the debtor ... must give reasonable authenticated notice of disposition to the debtor before disposing of the collateral and ever aspect of the disposition must be commercially reasonable. The disposition sale transfers 'all of the debtor's rights in the collateral' to the buyer at the sale. The debtor may veto any attempt by the creditor to simply retain the collateral as its own asset. After disposition, the financier must account to the debtor for any surplus realized over and above the amount of the debt. The entire scheme is premised on the core and central understanding that repossession does not wipe out the debtor's interest in the collateral." IBP. Coogan, et al., Secured Transactions Under the Uniform Commercial Code § 8.07 (2007) (citations omitted) .
apply proceeds from sales of Peaceable Kingdom and Carriage in Winter to repayment of loans Sotheby's made to the owners of the paintings. (Def.'s PSJ Mot. at 3-4, 8-9.) This argument is directly contrary to applicable law. The Second Circuit has made clear that where, as here, a lender does not have the right to use proceeds of a sale of property as he sees fit, but rather is required by a secured loan agreement to apply the proceeds to reduce an outstanding loan debt, that requirement confirms that the property was owned by the borrower and that the lender had only a security interest in the property. E.g., In re Joseph Kanner Hat Co., Inc. v. City Trust Co., 482 F.2d 937, 940 (2d Cir. 1973) (assignment to bank of the debtor's claim to a payment owed to the debtor by a third party gave bank a security interest that secured repayment of a loan the bank had made to the debtor, and not ownership of the claim, since "any payment received under the assignment would be applied to reduce the amount of the loan") i Wells Fargo N.W. Bank, N.A. v. Varig-S.A., 2003 WL 21508341, at *2 (S.D.N.Y. June 27, 2003) (assignment agreements conveyed only security interest, and not ownership, since all payments "were used to reduce the outstanding balance on plaintiffs' loan), aff'd, 108 Fed.Appx. 6 (2d Cir. 2004) i United States v. Poling, 73 F.Supp.2d 882, 893 (S.D. Ohio
1999) (under New York law, one factor that indicates "when an assignment operates to create a security interest instead of [ownership]" is that "the payments received are used to reduce the outstanding balance") i Trinity Holdings, Inc. v. Firestone Bank, 1994 WL 449258, at *4) (W.D.Pa. May 4, 1994) (payments "were to be applied as a credit in favor or the [borrowers] at the bank"), aff'd, 66 f.3d 313 (3d Cir. 1995).
The terms of the agreements make clear that what Sotheby's held was no more than a security interest in both Carriage in Winter and Peaceable Kingdom. As it is undisputed that the triangle symbol only pertains to "economic interest equivalent to an ownership interest," Sotheby's did not misrepresent its interests. Accordingly, Minor's misleading statement claim must be DISMISSED on this basis and the Court will not reach Sotheby's additional grounds for dismissal.
Additionally, in Minor's opposition to Sotheby's summary judgment motion, he argues that his rescission claim is based on a theory of "innocent misrepresentation." (Minor's Opp'n to Sotheby's Summ. J. Mot. at 41.) An innocent misrepresentation applies only to actual misrepresentations. Steen v. Bump, 233 A.D.2d 583, 584, 649 N.Y.S.2d 731,733 (3d Dep't 1996.) As the Court has already
found that Sotheby's did not make any actual
misrepresentations, Minor's innocent misrepresentation
claim must be also be DISMISSED.
D. DCA Regulations
Minor argues that the DCA regulations required
Sotheby's to disclose its interest in Peaceable Kingdom.12
Sotheby's contends that Minor's claim is precluded by his
judicial admissions. It is well-settled that statements by a
party's attorneys in legal papers or oral arguments can be
binding judicial admissions. E.g., Schwan-Stabilo Cosmetics
GmbH & Co. v. PacificLink Int'l Corp., 401 F.3d 28, 35 (2d
Cir. 2005) ("We have held that statements in papers
submitted to the court may constitute judicial
admissions. ") i Accord Purgess v. Sharrock, 33 F.3d 134, 144
(2d Cir. 1994) ("A court can appropriately treat statements
in briefs as binding judicial admissions of fact.") i
General Ins. Co. of Am. v. Mezzacappa Bros., Inc., 2003 WL
22244964, at *5 (E.D.N.Y. Oct. 1,2003) ("Statements made by
an attorney during oral argument thus constitute binding
judicial admissions") .
Here, Minor made a judicial admission in his response
to Sotheby's motion for partial summary judgment. Minor
12Nowhere in his argument does Minor contend that the DCA regulations required disclosure of Sotheby's interests in Carriage in Winter. (Minor Opp'n to Sotheby's SJ Mot. at 38-39.)
stated that his claims are "not based on, or brought under any DCA regulations." (Minor's Opp'n to Sotheby's SJ Mot. at 8.) Minor goes on to argue that "the DCA regulations are relevant only insofar as they constitute evidence of materiality of the information Sotheby's concealed from Minor, i.e., the materiality of its economic interest in the artworks at issue." (Id.) Sotheby's argues that the Court should therefore dismiss any claim by Minor that relies on the DCA regulations. Geller v. Prudential Ins. Co. of Am., 237 F. Supp.2d 210, 220 (E.D.N.Y. 2002) (granting summary judgment based on admission in oral
argument) i General Ins. Co., 2003 WL 22244964, at * 5 (same). The Court agrees. Minor's claims based on the DCA regulations are hereby DISMISSED.
2. Contract For.mation
Minor's Motion for Partial Summary Judgment on Sotheby's second and third claims is premised on the theory that Sotheby's proper use of the triangle symbol constitutes a condition precedent to the formation of a contract. (Def.'s PSJ Mot. at 8.) As discussed above, the Court finds that what Sotheby's held was no more than a security interest in both Carriage in Winter and Peaceable Kingdom. As it is undisputed that the triangle symbol only pertains to "economic interest equivalent to an ownership
interest," Sotheby's did not fail to fulfill a condition precedent by not applying the symbol to the paintings at issue. Accordingly, Minor's Motion of Partial Summary Judgment based on this theory is DENIED.
In his Amended Answer, Minor asserts eight affirmative defenses: (1) breach of contract, (2) misrepresentations and omissions, (3) breach of fiduciary duty, (4) fraud, (5) breach of the implied covenant of good faith and fair dealing, (6) violation of New York law (including N.Y. Gen. Bus. Law § 349), and California law (including its consumer protection legislation), (7) failure to mitigate damages, and (8) rescission. All of these defenses must be
Minor's first affirmative defense states only that, "Plaintiff's claims are barred by its own breach of contract." (Def.'s First Am. Answer, Countercls., and Jury Demand ("Am. Answer"), dated March 9, 2010, at 3.) While it is unclear from the pleadings which terms of the agreement Sotheby's allegedly breached, Minor appears to argue that Sotheby's breached its contract by failing to disclose its interests. In light of the Court's determination that there is no material issue of fact with respect to Sotheby's duty
to disclose its interests in the paintings, this
affirmative defense fails.
Minor's affirmative defenses based on fraud13 are
without merit for the same reasons Minor's breach of
fiduciary duty claim based on fraud fails - Minor fails to
allege with particularity that Sotheby's conduct caused any
actual or potential injury to either Minor or the public.
(See supra Section B(l) (A).)
Minor's sixth affirmative defense states that
"Plaintiff's claims are barred by its violations of New
York law (including, N.Y. Gen. Bus. Law §349) and
California law (including its consumer protection
legislation)." (Am. Answer at 3.) Judge Pitman found that
Minor could not assert a counterclaim for violation of the
N.Y. Bus. Law Section 349 because he failed to properly
allege an essential element of the claim - that he was
injured as a result of the deceptive practices.14 For the
13Minor's second, third, fourth, and fifth affirmative defenses are based on fraud. In Minor's Amended Answer, he characterizes Sotheby's omissions as materially misleading (Am. Answer ~~ 43-44, 60) and alleges that "Sotheby's intentionally and in bad faith concealed from Mr. Minor that it had an economic interest" in Carriage in Winter and Peaceable Kingdom "in order to induce" him to purchase the paintings (Am. Answer ~~ 47,62). These allegations are "averments of fraud" and therefore the particularity requirements of Rule 9(b) apply to these defenses. See Accord Aspex Eyewear, Inc. v. Ciardi Eyewear, Inc., 531 F. Supp.2d 620,623 (S.D.N.Y. 2008) ("affirmative defenses are pleadings, and therefore, are subject to all pleading requirements of the Federal Rules of civil Procedure") (citation omitted) .
14 No new facts have been alleged in the Amended Answer which would support a claim under this law. (See Judge Pitman's October 27, 2009 Order at 9-16.)
same reason, Minor's claim cannot stand as an affirmative defense. Minor's defense premised on Sotheby's violation of another New York law or California law must also be dismissed because Minor has not identified the laws at issue, let alone how they were allegedly violated. As the Second Circuit has made clear, "Affirmative 'defenses which amount to nothing more than mere conclusions of law and are not warranted by any asserted facts have no efficacy.'" Shechter v. Comptroller of the City of New York, 79 F.3d 265, 269-70 (2d Cir. 1996) (citation omitted). Accordingly, this defense fails.
Minor also asserts that Sotheby's claims are barred by its failure to mitigate any purported damages. However, it is undisputed that Sotheby's re-sold all three paintings. In the absence of evidence that Sotheby's did not make a "reasonable effort to resell [the cancelled items] at a reasonable price," as stated in U.C.C. § 2-709(1), the Court does not find that Sotheby's failed to mitigate its damages.
Minor's eighth affirmative defense asserts only that the contracts between the parties be rescinded. Minor alleges no basis for this form of relief, but rather requests the same form of relief that is requested in his counterclaims. The Court finds that this affirmative
defense fails for the same reasons set forth in Section B, denying Minor's counterclaims for fraud-based rescission.
As none of Minor's defenses or counterclaims bar
Sotheby's recovery with respect to its second and third claims, Sotheby's motion for summary judgment on the second claim is GRANTED in the amount of $1,638,500, plus interest, late charges, and legal fees, and in the amount of $2,673,000, plus interest, late charges, and legal fees, on the third claim.
c. SOTHEBY'S MOTION IN LIMINE
In conjunction with its summary judgment motion, Sotheby's has also moved to exclude testimony by two expert witnesses, Robert Ross ("Ross") and Robert Wunderlich ("Wunderlich") proffered by Minor.
Ross is offering opinions (i) that it is the custom and practice of auction houses to disclose when they have an economic interest equivalent to an ownership interest in an auction lot, which he believes includes a collateral interest; and (ii) that disclosure of such an interest is material and significant to a potential bidder. Minor's other expert, Wunderlich, offers a single opinion pertaining only to Peaceable Kingdom: "that Sotheby's had a significant economic interest in the Peaceable Kingdom,
equivalent from an economic perspective to an ownership interest." (Ex. 2 at 5.)
As the Court has already determined that Sotheby's interests are not ownership interests as a matter of law, Sotheby's Motion In Limine to exclude the expert testimony is DENIED AS MOOT.
Minor has moved to strike material Sotheby's submitted in support of its summary judgment reply. In particular, Minor seeks to strike three declarations and the recordings of Minor's telephonic bids with Mitchell during the May 22, 2008 auction. This motion is DENIED AS MOOT because the Court has not relied upon the declarations or the recording in deciding Sotheby's motion for summary judgment. See, e.g., Fowler v. Transit Supervisors Org., 2000 U.S. Dist. LEXIS 3544 (S.D.N.Y. 2000) (denying motion to strike as moot because Court did not rely on affidavit in determining motion for summary judgment) .
In connection with Sotheby's Motion for Summary Judgment, Minor also submits evidentiary objections as to the declarations of Olsoff, Mitchell, Prasens, and Bentoff. (Def.'s Evid. Obj. to Portions of Decls. Submitted in Supp. of Sotheby's Mot. for Summ. J., dated Sept. 3, 2009.)
Minor's objections fall into three broad categories: First, Minor objects to the declarations by Sotheby's witnesses on the ground that their personal knowledge has not been sufficiently established and their declarations therefore lack foundation; Minor's second category of objections invokes the best evidence rule, Fed. R. Evid. 1002; finally, Minor objects on relevancy grounds to testimony about discussions in which he admitted that he lacked the funds to pay Sotheby's.
Fed. R. Civ. P. Rule 56(e) states that affidavits
"must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." A court is not required to conduct a line-by-line analysis of a challenged affidavit, however, and may simply disregard those portions that are inadmissible. See Rus, Inc. v. Bay Indus., Inc., 322 F. Supp. 2d 302, 307 (S.D.N.Y. 2003) ("To the extent that an affidavit or declaration contains material that does not comply with Rule 56(e), the Court may strike those portions, or may simply disregard them") (citation omitted); Flaherty v. Filardi, No. 03 Civ. 2167
(LTS) (HBP) , 2007 U.S. Dist. LEXIS 4595, 2007 WL 163112, at * 4 (S.D.N.Y. Jan. 24, 2007) (denying a motion to strike and explaining that the court "will not expend limited
judicial resources scrutinizing each line" of an
affidavit) .
Here, there is no basis for disregarding any affidavit in its entirety. The Court has disregarded, however, those portions of the affidavits that are not based on personal knowledge, rely on hearsay, are irrelevant or are otherwise inadmissible. See Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999) abrogated on other grounds by Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000) (court may disregard "portions of an affidavit that are not based upon the affiantls personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements") i See, ~, u.S. Alliance Fed. Credit Union v. Cumis Ins.
Socl. Inc., 2009 U.S. Dist. LEXIS 83047 (S.D.N.Y.
2009) (disregarding portions of affidavits not based on admissible evidence) .
Because the Court only relied on admissible evidence in reaching its summary judgment decision, Minoris evidentiary objections are overruled.
For the reasons set forth above, Plaintiff's Motions for Summary Judgment are GRANTED with respect to all its claims. Defendant's Motion for Partial Summary Judgment is DENIED. Plaintiff's Motion In Limine and Defendant's Motion
to Strike are DENIED AS MOOT. Because no further issues remain to be decided in this action, the Clerk of the Court is directed to close the case.
Dated: New York, New York March 30, 2010


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How cute is Moose?
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Pet Tip
Dogs and Tapeworms – Pet tip 163
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- Eye Colour:
- Brown
I like to play with my puppet and I like to sleep in a little ball next to my owner. I love her and I want to give a WOOF! shoutout to all of my homie dogs like Maggie, Jo-Jo, Dottie, Chelsea, and Lucy. I'll Bark at you all later. I love to sleep and I like everybody! Please vote a five for me!


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Retail Businesses For Sale in Long Beach MS
Searched the DealStream database for Retail Businesses For Sale in Long Beach MS and found no matches. Expanded the search to nearby areas and found the following matches.
Medical Equipment and Services Provider #457596 posted Nov 9, 2016
- Gulfport, Mississippi, United States
- Available On Request
Southeastern based provider of respiratory therapy equipment & services. Also rental of wheelchairs, beds, and other living aids. Many local physicians refer their patients to the Company for oxygen, CPAP, and other services. Annual revenues are in excess of $1.2 millon and is profitable. Highly experienced...
Event Party Equipment Rental Business for Sale #456414 posted Oct 22, 2016
- Biloxi, Mississippi, United States
- $550,000
This turn-key party equipment rental business has been serving the Gulf Coast for 10 years and is located on one of the busiest highways on the Mississippi Gulf Coast. From inflatable bounce houses and waterslides to obstacle courses and dunk tanks, this business provides a complete line of party needs....
Profitable Biloxi Area Fabric & Sewing Store #409885 posted Jun 21, 2016
- Biloxi, Mississippi, United States
- $449,000
Profitable Fabric and Sewing Store Business for Sale on Mississippi Gulf Coast near Biloxi and Ocean Springs. Located on the beautiful Mississippi Gulf Coast, this highly profitable fabric, quilting, and sewing store business has experienced steadily increasing revenue and cash flow year after...
Furniture Store Business on Mississippi Gulf Coast #408065 posted May 27, 2016
- Ocean Springs, Mississippi, United States
- $750,000
This well-established furniture store has been in business for 40 years and has a large base of loyal repeat customers. The business has a large inventory of high-end, quality products. This furniture store business is located on a major highway in a suburb community. The area is a sportsman's paradise...
Midsouth Medical Equipment Provider #396992 posted Dec 21, 2015
- Gulfport, Mississippi, United States
- $875,000
This Mississipi based Durable Medical Equipment provides services and equipment to patients in their geographical area. Patients are referred by local physcians. The company provides CPAP, BIPAP, Oxygen equipment and services as well as rental of wheelchairs, hospital beds, walkers, and bathroom...
Unique Coffee Shop & Cafe Business for Sale #344056 posted Nov 7, 2013
- Gulfport, Mississippi, United States
- $105,000
This 7-year-old unique coffee shop and café business for sale is located in Gulfport, Mississippi just three blocks away from the beach. It is conveniently located near other businesses and offices, perfect for a quick lunch stop by the community workers. Currently, the business is only open for breakfast...
Did you know that social networking is a great way to buy a business? Sign up now and we'll show you how.


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March 10th, 2016
Episode 1820 of 4391 episodes
Duvel is back with a new short film: titled '90 Days'. For the first time the brand gives a real insight into the mythical brewing process of âBelgium's finest' It's all done in a typically quirky way, as the iconic aging process apparently involves not only skill and patience, but also a good dose of Belgian rock n roll. Following a script written by DDB Brussels, this stunning film is a production of Wenneker.be and director Hugo Keijzer. VIEW THE SPOT
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Welcome to the daily audio workout for your head.


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Glovemansion: Seduced by My satin gloves
Black satin gloves, so soft, so shiny. Would you like to see them upclose? Are my gloved hands getting you excited?
I know I can seduce you with my sexy lingerie, stockings, high heels and my long gloves. Let me wrap my hands around your hard cock and make you cum.
Seduced_by_My_satin_gloves.wmvTags: cum on gloves, Fetish Liza, Handjob, high heels, lingerie, POV, satin gloves, stockings


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Clockwork and naughty couplets were composed by the Russian people since ancient times. I do not lost this genre of Russian folk art and its relevance in modern times.
So how do you compose a ditty that she was sonorous and interesting?
Consider the theme of their future ditties. Most often, they are dedicated to ridicule someone or something can be and ditties, flirting, etc. zazyvaniya In essence, rhyme - a little short succinct statement in verse form, often caustic and funny.
Choose the main character (or characters) of theirrhymes. It can be as animated a person (for example, a tractor driver Bob) and an inanimate object (such as a bowl of soup). "Oh, a plate supochka! It pickled mushrooms. Soup came out one hundred percent! The guests who? You are welcome!"
Think of the characteristics of your main character couplets. What is it? How do you want to show it in his work? From what side?
For example: "Bob, our - accordion, broad-shouldered and very clever! He put on his shoulders - once I lost my voice! "
Pick rhyming couplets to the chief said,try to make them funny. Sometimes it is useful in a kind laugh at themselves or friends on the problems and fears. In addition, the ditties develop quick thinking and mental acuity.
Try to compose impromptu ditties, notgrind them. It has long been the custom in Russia, so that rhyme - Clitocybe, composing on the go, it could be an endless half-joking dialogue between barely even acquaintances or even strangers, for assessing the quality of the mind and the other interlocutor.
Do not try to use profanityin their chastushkas. Although some authors seek to express their feelings in words like ditty, these creations are popular not all.
Be creative your artwork without regard to whateverIn any case the laws of the genre. Compliance with strict rules on the size and content of the rhyme rhymes is not installed. Do not be afraid to show their inner emotions and feelings, do not hesitate to think outside the box.
Perform their ditties without musical accompaniment, or a balalaika - a tool used since ancient times to accompany poetic wit.


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This week in Las Vegas, vendors at the AVN Adult Entertainment Expo showed off the latest advances in their industry. Like every other business, technology is making inroads. That's right, sex is getting a goose from virtual reality, 3-D printing, Bluetooth, Wi-Fi, smartphone apps, and wearable electronics. Here's a round-up of a few of our frisky favorites.
, 3-D printing enthusiasts can download designs for a sex toys and print them at home. The vibrating toys come in a range of designs, from straightforward to funky. There are even toys shaped like Sigmund Freud and Justin Bieber.
GET MORE:Smartphones During Sex: Do You Do It?
Sex toy maker OhMiBod has a new product meant to help women strengthen their pelvic muscles. The Lovelife Krush is an activity tracker for kegel exercises that connects via Bluetooth to the companion app, called The Art and Science of Love. The device is due out this spring and can be pre-ordered for $75.
GET MORE:Top Surprising Health Benefits
Condom maker Durex makes Fundawear, wearable underthings for long-distance relationships. The underwear has tiny, vibrating parts that can be controlled remotely via a smartphone app. Thinking of that special someone across the way? Tap the app and give your sweetie a buzz.
GET MORE:Secret And Sordid Sex Lives Of Scientists: Photos
Realov offers a line of smartphone-controlled toys, including the first sound-activated device, shown here.
GET MORE:Am I A Sex Addict?!
The SexFit is a Bluetooth- and Wi-Fi-equipped ring that pairs with a smartphone app to help men achieve and maintain erections. It also tracks calories burned and thrusts per minute.
GET MORE:Do Sex Strikes Work?
DANIEL NAUPOLD/epa/Corbis
Virtual reality is infiltrating porn. Viewers can have 3-D virtual sex by wearing any of the headsets available, including the $25 Google Cardboard, the $599 Oculus Rift and anything in between. Just tune in to any one of a number of virtual realty porn sites on the Web.
GET MORE:Sexiest Tech And Techiest Sex Of The Year
For women with low libidos, check out the Fiera Arouser for Her. It's a small device that uses a suction-like feature to cover a woman's special parts and provide stimulation for up to 15 minutes. The increase in blood flow could help improve arousal.
GET MORE:3-D Printing Set To Customize Your Pleasure
E. Sensory
The Little Bird pairs the guilty pleasure of reading erotic fiction with the guilty pleasure of self-pleasuring. The companion reading app for Android and iOS sparks the imagination. While reading, just shake or caress the bird to trigger vibrations or breathe on the screen if you're feeling hot and heavy.
GET MORE:Futuristic Bra Only Opens For 'True Love'
Simone Golob/Corbis
They're not available yet, not the way you might expect. At the moment, companies are more or less selling expensive dolls that make those old-school inflatable ones look like beach toys. But it's not difficult to imagine a future where robotic, animated humanoids with soft limbs and computer brains work with virtual reality systems for an immersive experience. The best part: Nerds get to keep their glasses on in bed.
GET MORE:Lingerie Through The Ages


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"When the mob and the press and the whole world tell you to move, your job is to plant yourself like a tree beside the river of truth, and tell the whole world -- 'No, YOU move.'"
- Captain America
ESTJ - LSE - ESTj (mbti/socionics)
1w2/7w6/3w4 so/sx (enneagram)
lawful good (D&D) / ravenclaw + wampus (HP) / boros legion (M:TG)
conscientious > sensitive > serious (oldham)
want to ask me something? go for it!
There actually used to be a pretzel museum in Philadelphia, but sadly, it no longer exists. I can't say I ever went when it was open.
Forget the dead you've left; they will not follow you.
The vagabond who is rapping at your door, is standing in the clothes you once wore.
Sharknado 3: Oh Hello No!
Cleaning and buying cat food. Got things accomplished between jobs today and it feels good.
You hem me in -- behind and before;
you have laid your hand upon me.
Such knowledge is too wonderful for me,
too lofty for me to attain.
Take what I say with a grain of salt, because that's all it is compared to the ocean of complexity when it comes to actions and real life.
"Two dogs were scheduled to die -- set to be euthanized as they reached their deadline for adoption on Monday at a kill shelter in Georgia.
But Kala and Keira were saved at the last minute after a photo of them hugging went viral on social media."
It's July and I've already seen Halloween merchandise on the shelves.


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"quite a safe place" Bari Warnings Or Dangers Tip by davide78
Bari Warnings and Dangers: 7 reviews and 3 photos
Actually i read some comments on certain turistic guides pointing out how the old town of Bari could be dangerous and so on.. Far from being true!! The worst thing that can happen is meeting some local trying to buy you drinks...
There are dozens of bars/pubs /pizzeria in the old town and nowadays most of the nightlife starts there, then locals drive out of town to the large clubs.
1 - 0 of 0
Have you been to Bari?Share Your Travels


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In some few years, there are some groups have evolved in this world with the name of Muslims who have erupted the whole with their tyrant activities. They call themselves the real Muslim around the whole world unfortunately and people also ready to accept it especially from Europe.
When we goes in history we find some conspiracies at world level, when Israel attacked on Syria, it was defeated badly from the hands of Syrian army. So they decided to beat Syria in the same way as they beat to Israel. In many countries, ISIS are known as the worst enemy of modern human life. Never in the history have people seen such inhuman things.
It was the time of 2002 when new President of America was very near to get his seat for next 5 years. They decided to make plan against Syria to defeat them and punished them badly. They also planned to dissolve the country as they have done.
They raised the wave of religions like Shia and Sunni. They supported to Sunni group and started to help them for getting their own purpose. They supported them for many years and when they understand as they can stop the government they started to insertion.
In this way, they fell down the government of Syria and now those Jews are having unethical activities with girls on the name of Islam and like to call themselves as Muslims. In many countries, ISIS extremists are working but have never been given respect as others. They are the worst example of human behavior ever witnessed.


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We are aware of the fact that turmeric, popularly known as haldi in India, has immense benefits for health and beauty. This magical herb has excellent curing and antiseptic properties. It has been branded as one of the best remedies to get rid of facial and body hair. But did you know that it can benefit your hair too? Here is how you can make use of turmeric for your long tresses.
Turmeric is loaded with antibacterial, antioxidant and anti-inflammatory properties that help in treating dandruff. All you have to do is mix small amount of turmeric in few tablespoon of olive oil. Apply the paste on your scalp and leave it on for some time. Later rinse your hair with water. This will not only cleanse the scalp, thereby reducing dandruff but also stimulates the blood circulation throughout the scalp, improving hair growth.
Including this wonderful herb in your hair care regimen can help stimulate hair growth and prevent hair fall by including this magical herb in your hair care regimen. Prepare a mixture by adding turmeric powder in raw milk. If you have dry hair, you can add some 2 tablespoons of honey in this solution. Now gently massage solution onto your scalp and wash your hair with a mild shampoo. For best results, try this remedy twice a week and enjoy the bliss of long shiny hair.
Do you use henna to colour your hair? Using turmeric in your henna can give a lighter shade to your mane as it leaves a strong tint on the hair. Keep the pack for about 3-4 hours and then wash it off with cold water. Use a mild shampoo and conditioner.
Image Source: Getty
Read more articles on Hair care
Long tresses have always been a turn on factor for men. Here are ways you can style the cascading streak of feminity to get the men drooling.read more
Wedding Hairstyles for Long Hair:There are some salient aspects which need to be considered before determining wedding hairstyles for long hair.read more


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Chrono Trigger
Search Questions
|Unresolved Questions
|How to aquire the unreachable tab in black omen elevator shaft?
|How do I detect counterfeit ps1 games?
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Precision Turbo > Precision Gear > Gear
Precision Turbo & Engine 2016 Limited Edition T-Shirt
Part Number:
Manufacturer: Precision Turbo and Engine
Score this limited edition t-shirt just for 2016 and be a part of the PTE legacy!
Our T-shirts are made from 100% pure cotton and are preshrunk to ensure a great fit. Heavy weight, durable and comfortable, a PTE tee should be the next "performance part" that you purchase for your wardrobe.
Please see sizing chart image for fit specifications prior to ordering!


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For some time we have been interested in the changes in the protein content of the serum in hepatic disease. The basis of this interest lies in numerous clinical and experimental observations. Whipple1 found that the liver produces fibrinogen. Less conclusively other experiments have indicated that the liver is the site of formation of the albumin of serum. Clinical observations and studies show that there are changes in the protein content of the blood in hepatic disease. This fact was first observed by Grenet2 and Gilbert3 in 1907, who found a diminution of the total protein content of the blood in cases of cirrhosis of the liver. Filinski4 described cases of cirrhosis in which the total protein content was decreased, chiefly in the albumin fraction, with some elevation of the globulin content. His observation, confirmed by Abrami and Wallich,5 have received repeated verification in the
FOLEY EF, KEETON RW, KENDRICK AB, DARLING D. ALTERATIONS IN SERUM PROTEIN AS AN INDEX OF HEPATIC FAILURE. Arch Intern Med (Chic). 1937;60(1):64-76. doi:10.1001/archinte.1937.00180010069005
© 2017


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2017 Porsche Macan
The 2017 Porsche Macan is a 4-door, 5-seat Sport Utility, available in 4 trims, ranging from the GTS to the Base. Upon introduction, the $67,200 GTS is equipped with a standard 3.0L, 6-cylinder, An Automatic transmission is standard. The $47,500 Base is equipped with a standard 2.0L, 4-cylinder, engine that achieves 20-mpg in the city and 25-mpg on the highway. An Automatic transmission is standard.
the 2017 Porsche Macan See more photos
of the 2017 Porsche Macan


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what I wore : blue + brownThursday, June 30, 2016
A lady walking her dog watched me take these photos... and that's just about the most interesting thing I have to tell you about this outfit. I swear, sometimes figuring out what to write in posts is stupid hard. You start to overthink it, and then it just becomes impossible. I've been putting off writing this post since the day I took the photos. Now it's crunch time, the night before I want to post, and I've been sitting here watching a movie with my laptop open. "Working", ya know? I finally gave into Netflix's suggestion and watched The Fundamentals of Caring which proved to be a very good distraction from the keyboard that was calling my name.
Hope you're having a lovely Thursday! Maybe go watch that movie so we can pretend this post was about recommending you something to watch..?
PS. Check out the last two times this dress was featured on The Dainty Squid here + here!
9 thoughts
The Fundamentals of Caring was such a nice movie, I watched it yesterday. :) I have not done an outfit post in over a year. Perhaps I'm overly worried about ladies walking their dogs watching me...eep!ReplyDeleteReplies
Haha! Well, that's a fair reason I suppose. I was in the zone then suddenly realized there was someone nearby. I'm curious how long she had been there without me even noticing.Delete
I just watched that movie too, and loved it. If you liked the actor that played the kid, try watching Submarine :)ReplyDelete
My new goal is to find what fits me as well as that style of dress fits you! :) Have you written a post about what it's like taking outfit photos in public? That would be interesting. I've only just begun my outfit post journey so I expect it will take me a while before I do what you do. I'm good alone in my backyard but when I've asked my fiance to snap some shots of me out and about, I'm constantly like, "someone's coming! Put the camera down!" haha!ReplyDeleteReplies
Fit + flare dresses are where it's at! They're basically the only thing I buy anymore. So flattering! :)Delete
No, I haven't but that would definitely be interesting. I'll jot that down in my post idea notebook.
You've been looking so confident and happy lately ^^ You're beautiful, I love how your style evolved, it's still quite ladylike and cute but with an urban edge :D And those pins omgReplyDeleteReplies
Thank you!!! <3333Delete
I have exactly the same troubles when I'm writing blog posts. I post recipes, and sometimes I just want to write "this cake is freaking great, just make it okay?" So I feel your pain. But these outfit is really cute and as I'm sitting here I think I'm currently wearing the same cardigan!ReplyDelete
xo, Diana


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Ad ID: 286641


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House near Mornington CentreNeuseelandOtagoDunedin
Über dieses Inserat
Has a great view and garden. A friendly dog and lots of space, and really close to the Mornington shops.
Has a great view and garden. A friendly dog and lots of space, and really close to the Mornington shops.
It's a 3 bedroom villa, with a large living room area and kitchen. Has one bathroom.
You're able to use the fridge, living area, and garden.
I can help out with anything, or at least lead you in the right direction.
Nice suburb, not far from downtown. Easy access with buses and local facilities all here. Great views across the city.
Close to public transport and I also have a car.
Be friendly, clean and tidy :)
5 Bewertungen
Dein Gastgeber
Home owner, with spare time at the moment. Have good tips about where to go and what to do in Dunedin.
Have been fully immersed in Music this year.
Lately I've been reading the aeneid and the art of war.
I've got a couple of degrees from the University here, one is PE and the other is business.
Have done a little bit of travel around Asia, although there is much more of the world I would like to see. :)


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Services -
Resources - School Therapists
- Standards - Armagh's
Speech Page
Welcome! Our names are
Denise D. Satzler and
Karen M. Stomackin. We are speech therapists serving Highland Park Area
Elementary School. Mrs. Stomackin also serves Armagh Elementary School.
purpose of this web site includes:
information on the speech and
language services provided in the Mifflin County School District
additional resources for information on speech and language
a complete listing of speech therapists with their respective schools
a link to Pennsylvania's Academic Standards for Reading, Writing, Speaking and
a link to Mrs. Stomackin's Armagh Home Page
purpose of this web site includes:
Click on the talking boy for information on speech/language
services provided in the Mifflin County School District.
Click on the lips for additional resources on speech and
language development.
Click on the school building for a complete
list of schools in the Mifflin County School District and their
respective speech therapists
Click on the book for a link to Mifflin
County's standards.
Click on the Armadillo paw prints for a link to
Armagh's speech web site
Please click on the picture for a
"blooming good speech and language" bulletin board
Thursday, July 03, 2008
URL: http://www2.mcsdk12.org/dds28
© 2006 MCSD. All rights reserved.
Comments may be directed to: Mrs. Satzler
Mifflin County School District, 201 Eighth Street - Highland Park,
Lewistown, PA 17044


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- Photos
- Map/Street View
- Things Nearby
748 Simpson Avenue, Ocean City, This vacation rental property sleeps 10 with 4 bedrooms and 5 and one half baths. Spectacular Shore home, with 3,500 square feet of living space on 3 floors. Two Master suites plus 2 more bedrooms, ALL with full, private, attached bathrooms. → Read More
Share this listing: Email Print


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3323 Lee Hwy, Bristol, VA 24202Request info Add to list
To view building contacts please sign in with your Pro account or create a pro account.
Kelly G.
Company: requires Pro account
Email: requires Pro account
Phone: requires Pro account
- Available Spaces
|Space Type
|For sale: Contact for Pricing
|65,340 sqft
Building Details:
3323 Lee Hwy is aland property for lease in Bristol, VA. The property currently has 1 land for lease and is marketed by Graham & Associates.
Exceptional 1.5 acre site fronting Lee Highway at I-81, Exit 7 retail and restaurant interchange. Formerly Evergreen Garden Center, site is being cleared and site prepped. Suited to a variety of commercial users from c-store to restaurant to professional office. Property adjoins Quality Inn to the rear and next to Dollar General and Grand Furniture stores. High traffic and high visibility location between Walmart, Sam's and Lowe's to the east and Home Depot, Target, Best Buy and TJ Maxx to the west. One of the few remaining commercial parcels available along this popular stretch of Lee Highway!
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Please describe your commercial real estate requirements. We'll introduce you to local properties that match your criteria.


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Fuel your growth by raising capital.
At SunTrust, we can help you structure a financing package that includes equity, along with senior and junior debt as we have for hundreds of companies at all growth stages, across a wide variety of industries.
We'll put together a team featuring capital markets specialists from SunTrust Robinson Humphrey that will take the time to understand your company's strategic needs, and structure appropriate debt and equity financing solutions to support them. We'll also work with you to design a marketing and syndications strategy that generates the broadest possible investor interest and helps you achieve your financing goals.
We have broad expertise in equity and debt origination and we're committed to providing superior service at every step of the capital-raising process.
Public and Private Equity Capital Raising
In the past decade, we've helped raise more than $100 billion in public equity for over 300 clients. Our capabilities include:
- Initial public offerings
- Follow-on offerings
- Convertible securities
- Private investments in public equity (PIPEs)
- Registered direct offerings
Debt Capital Raising
Our debt origination specialists offer expert issuer-focused guidance and a full range of financing options to help you secure the funding you need for smart growth. In coordination with our investment banking partners, we provide capital structure ideas tailored to your specific industry along with superior execution through our public and private sales and trading desks.
Our syndicated finance and fixed income origination specialists work together to provide you with full service, one-stop structuring, underwriting and execution to meet all your capital-raising needs.
- Corporate Lending: Funds for your strategic initiatives in a variety of market conditions.
- Syndicated and Leveraged Finance: Syndicated loans and high-yield bonds that we structure, underwrite and execute to support acquisitions, buyouts, working capital needs or other capital structure events. We serve clients at all stages of growth and with a broad range of credit profiles- from non-investment grade to investment grade.
- Public and Private Debt: Innovative fixed income structuring and underwriting recommendation services for all types of businesses, from seasoned investment-grade issuers to first-time, leveraged high-yield issuers requiring a new capital raise or liability management guidance.
- Ratings Advisory: Dedicated professionals to focus on you through every aspect of the ratings process, from consulting in initial capital structure discussions to constructing a ratings proposal and ensuring timely execution.
- Real Estate Finance: Sophisticated financing solutions for land acquisitions, building construction, income-producing properties and more
- Asset Securitization: Securitization solutions that let you monetize your cash-flow-producing assets in order to free up capital, raise liquidity and manage your balance sheet
- Tax-Exempt Finance: A wide variety of variable and fixed rate bond issuances for tax-exempt municipalities, industrial development, including energy-related projects, as well as for healthcare facilities and other nonprofit institutions
© 2017. SunTrust Robinson Humphrey is a service mark of SunTrust Banks, Inc. SunTrust Robinson Humphrey is the trade name for the corporate and investment banking services of SunTrust Banks, Inc. and its subsidiaries, including SunTrust Robinson Humphrey, Inc., member FINRA and SIPC. Debt and equity underwriting, trading, research and sales, loan syndications, municipal securities trading and sales, and merger and acquisition advisory services are offered by SunTrust Robinson Humphrey. Cash management, loans and loan related products, financial risk management products and services and agency services including derivatives products are offered by SunTrust Bank.
Resource Center
Competitive Needs Drive Tech Investments
Data breaches at big-name companies are leading businesses to prioritize security, among many other tech investments.
Infographic: Equipment Financing Trends
U.S. business investments in equipment and software are expected to hit new highs in 2016, but how many of those dollars are being financed through loans, leases and lines of credit?
The Americas: Nearby Opportunity for the Middle Market
Why middle-market companies may have more growth potential than they realize—and why much of this expansion opportunity may be closer than expected.
Case Study: No Advertising, No Problem: How a New Approach to Insurance Agencies Powers Growth
Business finance, business line of credit, new business loans
Case Study: A Creative Approach to Financing Higher Education
SunTrust's unique approach of investing in Nashville's Lipscomb University to foster greater results changed the course the university.


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Media Kit
New York Times bestselling author Eloisa James writes historical romances for HarperCollins Publishers. Her novels have been published to great acclaim. A reviewer from USA Today wrote of Eloisa's very first book that she "found herself devouring the book like a dieter with a Hershey bar"; later People Magazine raved that "romance writing does not get much better than this." Her novels have repeatedly received starred reviews from Publishers' Weekly and Library Journal and regularly appear on the best-seller lists. After being a finalist for a RITA—the top award in the genre of romance fiction awarded by the Romance Writers of America—over ten times, she won in 2013.
Photo by Bryan Derballa
After graduating from Harvard University, Eloisa got an M.Phil. from Oxford University, a Ph.D. from Yale and eventually became a Shakespeare professor, publishing an academic book with Oxford University Press. Her "double life" is a source of fascination to the media and her readers. In her professorial guise, she's written a New York Times op-ed defending romance, as well as articles published everywhere from women's magazines such as More to writers' journals such as the Romance Writers' Report.
Fast Facts
- Eloisa James is a professor of English literature, specializing in Shakespeare. She teaches at Fordham University in New York City. Oxford University Press published her academic book in 2000. After graduating from Harvard University, Eloisa got an M.Phil. from Oxford University, a Ph.D. from Yale.
- With the exception of a year in Paris, and another in London, Eloisa lives in New York City during the school year and in Florence, Italy, during the summer. Her husband is a cavaliere, an Italian knight.
- Eloisa James is the daughter of poet Robert Bly (winner of the American Book Award for Poetry) and short story author Carol Bly. Her father is a big fan.
- Eloisa James's godfather was the poet James Wright, winner of the Pulitzer Prize for his Collected Poems. Among those poems – and one of Wright's most beloved – is a poem written for his goddaughter, Mary Bly (aka Eloisa James).
Career Highlights
- As of the end of 2014, Eloisa has approximately 5 million books published in print or electronically, in 26 languages.
Eloisa has published twenty-four novels, twenty-two of which have hit the bestseller lists. She also wrote a bestselling memoir, Paris in Love.
- Eloisa's books are published in 28 countries including Slovakia, Slovania, and both print and manga editions in Japan.
In 2013, Eloisa won the RITA Award, romance industry's top honor, for Seduced by a Pirate.
- In 2012, Eloisa was the first romance writer asked to give a talk at the National Book Festival in Washington, D.C. She wrote an essay about it for the Washington Post.
- In 2009, Eloisa gave a keynote speech at the annual Romance Writers of America conference and appeared on the keynote panel at the Shakespeare Association of America conference.
- In 2005, Eloisa wrote an op-ed for The New York Times, defending the romance genre against the term "bodice-ripper."
Recent Press
The Booklist Reader
Witty Heroines, Steamy Romance Novels →
The Booklist Reader included My American Duchess in their Witty Heroines article.
RT Book Review
Seven Minutes in Heaven Cover Breakdown →
RT Book Review loves the cover of Seven Minutes in Heaven so much they selected it for a Cover Breakdown.
AOL Build
Eloisa's Appearance on AOL Build →
Eloisa appeared along with producer Laurie Kahn on AOL Build to talk about the documentary, Love Between the Covers.
Behind the Velvet Rope
Eloisa Goes Behind the Velvet Rope →
Eloisa and producer Laurie Kahn appeared on Behind the Velvet Rope.
Downloadable PhotosPhotos by Bryan Derballa
Publicity and Other Contacts
Pamela Spengler-Jaffee
Publicity, Harper Collins Publications
212 207 7495
Kim Castillo
Eloisa's Personal Assistant


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Homestead, FLView Tutor


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