Genger v. Genger , 663 F. App'x 44 ( 2016 )


Menu:
  •      15-1222 (Con)
    Genger v. Genger
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
    ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
    PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
    DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
    ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
    SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    1            At a stated term of the United States Court of Appeals
    2       for the Second Circuit, held at the Thurgood Marshall United
    3       States Courthouse, 40 Foley Square, in the City of New York,
    4       on the 29th day of September, two thousand sixteen.
    5
    6       PRESENT: DENNIS JACOBS,
    7                DEBRA ANN LIVINGSTON,
    8                              Circuit Judges.
    9                JED S. RAKOFF,*
    10                              District Judge.
    11
    12       - - - - - - - - - - - - - - - - - - - -X
    13       SAGI GENGER,
    14                Plaintiff-Appellee,
    15                                                                15-350 (L)**
    16                      -v.-                                      15-1222 (Con)
    17                                                                15-3788 (Con)
    18       ORLY GENGER
    19                Defendant-Appellant.
    20       - - - - - - - - - - - - - - - - - - - -X
    21
    *
    The Honorable Jed S. Rakoff, United States
    District Court for the Southern District of New York,
    sitting by designation.
    **
    15-350 was closed on May 22, 2015.
    1
    1   FOR APPELLANT:             MICHAEL PAUL BOWEN, Daniel R.
    2                              Benson, Eric Herschmann, Sarmad
    3                              M. Khojasteh (Kasowitz Benson
    4                              Torres & Friedman LLP, New York,
    5                              NY). Yoav Michael Griver
    6                              (Zeichner Ellman & Krause LLP,
    7                              New York, NY).
    8
    9   FOR APPELLEES:             SARAH REID, John G. Dellaportas
    10                              (Kelley Drye & Warren LLP, New
    11                              York, NY).
    12
    13        Appeal from a judgment of the United States District
    14   Court for the Southern District of New York (Forrest, J.).
    15
    16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
    17   AND DECREED that the judgment of the district court be
    18   AFFIRMED.
    19
    20        Orly Genger appeals from a judgment of the United
    21   States District Court for the Southern District of New York
    22   (Forrest, J.) granting summary judgment in favor of Sagi
    23   Genger on his contract claim against his sister, Orly. Also
    24   involved are their mother Dalia, and their father Arie. We
    25   refer to them by their given names. On appeal, Orly argues
    26   that the district court erred (1) by failing to grant her
    27   motion to dismiss for lack of subject-matter jurisdiction,
    28   (2) by finding an enforceable contract between Orly and Sagi
    29   as a matter of law, and (3) by failing to grant Orly’s
    30   request for post-judgment relief. We assume the parties’
    31   familiarity with the underlying facts, the procedural
    32   history, and the issues presented for review.
    33
    34        1. Orly moved to dismiss for lack of subject-matter
    35   jurisdiction. See Fed. R. Civ. P. 12(b)(1). The district
    36   court’s jurisdiction was premised on diversity, and Orly
    37   argues that she and Sagi were non-diverse domiciliaries of
    38   New York. See 28 U.S.C. § 1332(a)(1). Initially, the
    39   district court granted Orly’s Rule 12(b)(1) motion, and
    40   dismissed without prejudice after finding that Sagi had
    41   failed to demonstrate that he had changed domiciles to
    42   Connecticut. Two days after the dismissal, Sagi re-filed
    43   his complaint in the same court, and the district court
    44   found that he had now sufficiently established his domicile
    45   in Connecticut.
    46
    2
    1        To alter one’s citizenship for purposes of 28 U.S.C. §
    2   1332(a)(1), the party must show (1) “residence in a new
    3   domicil[e]” and (2) “the intention to remain there.”
    4   Palazzo ex rel. Delmage v. Corio, 
    232 F.3d 38
    , 42 (2d Cir.
    5   2000) (quoting Linardos v. Fortuna, 
    157 F.3d 945
    , 948 (2d
    6   Cir. 1998)). “The district court’s factual findings as to
    7   whether there has been a change of residence and whether
    8   that move was effected with the requisite intent of
    9   permanence may be overturned on appeal only if they are
    10   ‘clearly erroneous.’” 
    Id. (citing Fed.
    R. Civ. P. 52(a)).
    11
    12        Orly argues collateral estoppel; however, collateral
    13   estoppel is only available when a prior proceeding litigated
    14   an issue identical to an issue in the current proceeding.
    15   Flaherty v. Lang, 
    199 F.3d 607
    , 613 (2d Cir. 1999). The
    16   question in the first action was whether Sagi had
    17   sufficiently demonstrated a change of domicile as of
    18   February 2014, the time he filed his first complaint; the
    19   issue in the second action was whether Sagi had demonstrated
    20   a change of domicile as of July 2014, the time he filed his
    21   second complaint. Since these are separate inquiries,
    22   collateral estoppel does not apply.
    23
    24        We also find no error in the district court’s
    25   conclusion that Sagi had sufficiently established a change
    26   of domicile as of the date he filed his second complaint.
    27   In dismissing the first action, the district court observed
    28   that, as of the filing of the first complaint, Sagi did not
    29   have tenants at his New York apartment, there was no
    30   documentary evidence that he had rented property in
    31   Connecticut, and that there was significant doubt that Sagi
    32   had removed a religious article that would denote that the
    33   apartment was his home. Moreover, Sagi continued to use the
    34   address of his New York apartment for several months after
    35   filing his first complaint. By the time Sagi filed his
    36   second complaint in July 2014, the district court had been
    37   presented with much of the missing or doubtful evidence, as
    38   well as other evidence supporting Sagi’s claim that he had
    39   changed domiciles to Connecticut. For example, Sagi swore
    40   that he had “not stayed overnight in New York State . . .
    41   for nearly a year,” that his former New York home was now an
    42   investment property that had been leased on a long-term
    43   basis, and that he had registered to vote in Connecticut.
    44   J. App’x at 272-73. Considering this evidence, as well as
    45   evidence Sagi submitted in the first complaint regarding his
    46   attendance at Connecticut religious services, his
    47   Connecticut driver’s license, his children’s attendance in
    3
    1   Connecticut schools, and other evidence, we see no clear
    2   error in the district court’s determination that Sagi had
    3   changed domiciles to Connecticut, thereby creating subject-
    4   matter jurisdiction.
    5
    6        2. Orly challenges the award of summary judgment to
    7   Sagi on his breach of contract claim. We “review a . . .
    8   grant of summary judgment de novo, construing the evidence
    9   in the light most favorable to the non-moving party and
    10   drawing all reasonable inferences in its favor.” Allianz
    11   Ins. Co. v. Lerner, 
    416 F.3d 109
    , 113 (2d Cir. 2005).
    12
    13        Plaintiffs must prove four elements to make out a valid
    14   claim for breach of contract under New York law: “[1]
    15   formation of a contract, [2] performance by the plaintiff,
    16   [3] breach and [4] ‘resulting damage.’” McCormick v.
    17   Favreau, 
    82 A.D.3d 1537
    , 1541 (N.Y. App. Div. 2011) (quoting
    18   Clearmont Prop., L.L.C. v. Eisner, 
    58 A.D.3d 1052
    , 1055
    19   (N.Y. App. Div. 2009)). Only the first element is in
    20   dispute.
    21
    22        Three documents are relevant to the contract formation
    23   issue. The first is the “Divorce Stipulation” between Dalia
    24   and Arie. In it, Dalia and Arie agreed to convey shares of
    25   stock to separate trusts benefitting Orly and Sagi (herein
    26   referred to as the “Orly Trust” and “Sagi Trust”
    27   respectively). The two trusts were to receive equal
    28   interests in the stock. The second is a letter signed by
    29   Sagi and Dalia in which Sagi agreed to pay Dalia, upon
    30   demand, an amount up to the value of the stock she conveyed
    31   to the two trusts (“the Promise”). The third is a letter in
    32   which Orly agrees to indemnify Sagi for half of such
    33   payments he makes to Dalia (“the Indemnity”).
    34
    35        As the district court found, the Promise and the
    36   Indemnity form an integrated agreement in which Orly has a
    37   contractual duty to reimburse Sagi for half of the amount he
    38   pays Dalia for living expenses. Whether separate documents
    39   form an integrated agreement depends on the intent of the
    40   parties. TVT Records v. Island Def Jam Music Group, 412
    
    41 F.3d 82
    , 89 (2d Cir. 2005). This is normally a jury
    42   question, “[b]ut if the documents in question reflect no
    43   ambiguity as to whether they should be read as a single
    44   contract, the question is matter of law for the court.” 
    Id. 45 Two
    documents may reach the requisite level of clarity when
    46   they are “intended to effectuate the same purpose” and the
    47   later-executed document is “meaningless” without the first.
    4
    1   
    Id. at 89-90.
    The district court recognized that the
    2   Indemnity and Promise meet this test. The two documents
    3   jointly created a means by which Sagi and Orly would share
    4   the costs of supporting Dalia. The Indemnity is meaningless
    5   without the Promise, as the latter includes the claims for
    6   which Orly must indemnify Sagi. Similarly, absent the
    7   Indemnity, “Sagi could be obligated under the . . . Promise
    8   to pay Dalia double the economic benefit he received from
    9   his shares . .. and Orly would effectively have received the
    10   shares as a gift.” Genger v. Genger, 
    76 F. Supp. 3d
    . 488,
    11   497 (S.D.N.Y. 2015). As the district court found, there was
    12   no genuine dispute as to whether the documents were
    13   integrated.3
    14
    15        Orly also argues that the district court ignored
    16   factual disputes as to whether the Indemnity was inauthentic
    17   or forged. Orly thus contends it was improper for the
    18   district court to determine on summary judgment that an
    19   enforceable contract existed between her and Sagi. But her
    20   response to Sagi’s motion for summary judgment does not
    21   contend (let alone prove) that the Indemnity was forged or
    22   inauthentic. Orly has thus forfeited this argument and
    23   cannot raise it on appeal. See United States v. Keppler, 2
    
    24 F.3d 21
    , 23-24 (2d Cir. 1993) (“Generally, issues not raised
    25   in the trial court . . . will be deemed waived on appeal.”).
    26   In any event, Orly’s summary judgment declaration does not
    27   deny that she signed the document.4 Therefore, the district
    3
    Orly argues that the district court improperly failed
    to consider whether the Divorce Stipulation was also
    integrated with the Indemnity and Promise. Though vague,
    Orly appears to argue that Arie would not have approved of
    the agreement between Orly, Sagi, and Dalia, or perhaps
    would not have entered into the Divorce Stipulation had he
    known of the arrangement. But Orly has not shown that
    Arie’s approval was necessary to form the agreement among
    Sagi, Orly, and Dalia.
    4
    Orly argues that, because she had stated she “ha[d]
    no recollection” of signing the Indemnity, she thereby
    denied signing the document. Appellant Reply Br. at 3.
    This statement does not constitute a denial. See FDIC v.
    Nat’l Union Fire Ins. Co., 
    205 F.3d 66
    , 75 (2d Cir. 2000)
    (“[V]ague denials and memory lapses . . . do not create
    genuine issues of material fact.”). Consequently the
    district court properly deemed the fact that Orly signed the
    5
    1   court properly concluded that there was no genuine dispute
    2   regarding the Indemnity’s authenticity.
    3
    4        The district court rejected Orly’s assertion that any
    5   contract between her and Sagi would be void for lack of
    6   consideration. See Murray v. Northrop Grumman Info. Tech.,
    7   Inc., 
    444 F.3d 169
    , 178 (2d Cir. 2006) (noting that New York
    8   law requires contracts to be supported by consideration).
    9   Specifically, the district court observed that Orly, along
    10   with Arie and their litigation funders, received $32 million
    11   in exchange for relinquishing all rights to the shares she
    12   received as part of the Divorce Stipulation. Although Orly
    13   asserts that the record does not reveal that she actually
    14   received any money from the settlement, the argument section
    15   of her brief does not press the point that the integrated
    16   agreement at issue here is invalid for lack of
    17   consideration. For this reason alone, we would properly
    18   deem this argument waived for purposes of this appeal. To
    19   the extent Orly attempts to make this argument, she seeks to
    20   ground it by suggesting that the record does not reveal that
    21   she received any money from the settlement. But surely any
    22   $32 million transaction for her shares would confer upon her
    23   more than a peppercorn, which is all we need to conclude
    24   (and all we do conclude) as to the extent of any benefit she
    25   received.5 Consideration encompasses more than just
    26   receiving cash: it “exists where there is ‘either a benefit
    27   to the promisor or a detriment to the promisee.’” See
    28   Hollander v. Lipman, 
    65 A.D.3d 1086
    , 1087 (N.Y. App. Div.
    29   2009) (quoting Weiner v. McGraw-Hill, Inc., 
    443 N.E.2d 441
    ,
    30   444 (N.Y. 1982)). Orly does not dispute that she was part
    31   of a group that settled a claim involving the shares she was
    32   to receive as part of the Divorce Stipulation. Orly
    33   benefitted from the shares regardless of whether the
    document as uncontested. See T.Y. v. N.Y.C. Dep’t of Educ.,
    
    584 F.3d 412
    , 418 (2d Cir. 2009) (“A nonmoving party’s
    failure to respond to a Rule 56.1 statement permits the
    court to conclude that the facts asserted . . . are
    uncontested and admissible.”).
    5
    Sagi suggests, elliptically, that the bare fact that
    he, Sagi, received payments relating to the shares he was to
    receive as part of the Divorce Stipulation would be
    sufficient to trigger the Indemnity. This argument was
    neither considered by the district court or fairly before us
    on appeal, and we expressly decline to decide that issue.
    6
    1   settlement money went to Orly, as a gift to Arie, or to pay
    2   debts owed to her litigation partners.6 Moreover, her
    3   argument oddly assumes that she derives no benefit from her
    4   brother’s undertaking to support the mother of them.
    5
    6        The district court determined that Orly lacked any
    7   valid defense to Sagi’s breach of contract claim. Orly
    8   argues that she need not reimburse Sagi because he did not
    9   afford her an opportunity to defend against Dalia’s claim.
    10   See Chase Manhattan Bank v. 264 Water St. Assocs., 222
    
    11 A.D.2d 229
    , 231 (N.Y. App. Div. 1995). But as the district
    12   court observed, notice is unnecessary if an indemnitee can
    13   “establish that [it] would have been liable and that there
    14   was no good defense to that liability.” Deutsche Bank Trust
    15   Co. v. Tri-Links Inv. Trust, 
    74 A.D.3d 32
    , 39 (N.Y. App.
    16   Div. 2010). The agreement between Orly and Sagi gave Dalia
    17   “sole and absolute discretion” to request funds “to support
    18   [her] lifestyle.” J. App’x at 15. Orly asserts that she or
    19   Sagi might have resisted a claim by challenging Dalia’s need
    20   for the money she demanded. But Orly’s speculation of
    21   Dalia’s bad faith is insufficient to create a genuine
    22   dispute as to material fact. Therefore, we find no merit in
    23   her argument.7
    24
    25        3. We also find no merit in Orly’s appeal of the
    26   district court’s denial of her post-judgment motion.
    27   Specifically, Orly moved the district court to set aside its
    28   judgment pursuant to Federal Rule of Civil Procedure
    29   60(b)(2),(3), and (6). We review a district court’s denial
    30   of a Rule 60(b) motion for abuse of discretion. Boule v.
    31   Hutton, 
    328 F.3d 84
    , 95 (2d Cir. 2003).
    6
    Orly does not argue on appeal that the shares she
    received under the Divorce Stipulation are invalid as past
    consideration. In any event, this argument would be
    foreclosed by N.Y. Gen. Oblig. Law § 5-1105, which allows
    for past consideration. And since the agreement was
    supported by consideration, we do not need to consider
    whether Sagi was entitled to relief based on a promissory
    estoppel theory.
    7
    Orly did not advance on appeal any of the other
    defenses she argued to the district court. They are
    therefore forfeited, 
    Keppler, 2 F.3d at 23-24
    , and to the
    extent she does raise them on appeal, we find them so vague
    and inarticulate as to lack substance or merit.
    7
    1        Rule 60(b)(2) allows a district court to vacate a prior
    2   judgment on the grounds of newly discovered evidence.
    3   However, to succeed on this ground, Orly had to show that
    4   the new evidence was “of such importance that it probably
    5   would have changed the outcome” of the case. United States
    6   v. Int’l Bhd. Of Teamsters, 
    247 F.3d 370
    , 392 (2d Cir.
    7   2001). The district court expressly stated that the new
    8   evidence Orly presented would not have changed the decision;
    9   and we find no abuse of discretion in that determination.
    10
    11        Orly’s theory proceeds as follows: (1) The district
    12   court granted summary judgment against Orly after concluding
    13   that Orly had entered into an enforceable contract. (2) The
    14   district court based its finding of a contract on a letter
    15   purportedly signed by Orly. (3) The only evidence
    16   authenticating the signed letter was an affidavit by a man
    17   named Parnes. (4) Orly asserts that, in a separate lawsuit
    18   between Orly and Sagi, Parnes gave deposition testimony
    19   indicating that Parnes never saw whether Orly had signed the
    20   letter. (5) Therefore, Orly concludes, the district court
    21   lacked sufficient evidence from which to determine that Orly
    22   was subject to a legally enforceable contract.
    23
    24        The problem with this theory is that the district court
    25   never relied on the Parnes affidavit to authenticate the
    26   letter. Indeed, as mentioned above, Orly did not deny that
    27   she signed the letter in her Rule 56.1 Statement. It was
    28   for that reason rather than because of the Parnes affidavit
    29   that the district court identified no genuine dispute as to
    30   the letter’s authenticity. Orly’s claimed inability to
    31   remember signing the letter does not change this analysis.
    32   See Nat’l Union Fire Ins. 
    Co., 205 F.3d at 75
    . In short,
    33   Orly is attempting to cast doubt on a piece of evidence that
    34   was wholly irrelevant to the district court’s decision.
    35
    36        Orly’s Rule 60(b)(3) motion fails for similar reasons.
    37   Rule 60(b)(3) allows a district court to vacate a judgment
    38   on the grounds of fraud, misrepresentation, or misconduct by
    39   an opposing party. However, “[t]o prevail[,] . . . a movant
    40   ‘must show that the conduct complained of prevented the
    41   moving party from fully and fairly presenting [her] case.”
    42   State St. Bank & Trust Co. v. Inversiones Errazuriz
    43   Limitada, 
    374 F.3d 158
    , 176 (2d Cir. 2004) (quoting Taylor
    44   v. Texgas Corp., 
    831 F.2d 255
    , 259 (11th Cir. 1987)). Given
    45   that the district court did not even rely on the evidence
    46   that Orly characterizes as crucial, she cannot be said to
    8
    1   have been “prevented . . . from fully and fairly presenting
    2   [her] case.”
    3
    4        Orly’s Rule 60(b)(6) motion fares no better. “[I]f the
    5   reasons offered for relief from judgment can be considered
    6   in one of the more specific clauses of Rule 60(b), such
    7   reasons will not justify relief under Rule 60(b)(6).” Int’l
    8   Bhd. Of 
    Teamsters, 247 F.3d at 391-92
    . In effect, Orly’s
    9   motion was premised on newly discovered evidence and fraud,
    10   which can be considered under Rule 60(b)(2) and (3).
    11   Consequently, she has no claim to relief under Rule
    12   60(b)(6).
    13
    14        Accordingly, the judgment of the district court is
    15   hereby AFFIRMED.
    16
    17                              FOR THE COURT:
    18                              CATHERINE O’HAGAN WOLFE, CLERK
    9