Republic of Cape Verde v. A & A Partners

89 F.R.D. 14, 1980 U.S. Dist. LEXIS 17869
CourtDistrict Court, S.D. New York
DecidedOctober 2, 1980
Docket79 Civ. 6569 (RO)
StatusPublished
Cited by13 cases

This text of 89 F.R.D. 14 (Republic of Cape Verde v. A & A Partners) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Republic of Cape Verde v. A & A Partners, 89 F.R.D. 14, 1980 U.S. Dist. LEXIS 17869 (S.D.N.Y. 1980).

Opinion

ORDER

OWEN, District Judge.

The report and recommendation of the magistrate are hereby made the order of this Court and the matter is referred back to Magistrate Buchwald to conduct a hearing and determine the fee due plaintiff under the award.

So ordered.

REPORT AND RECOMMENDATION

NAOMI REICE BUCHWALD, United States Magistrate.

This action was commenced on December 5, 1979. Thereafter, plaintiff moved for partial summary judgment and was successful to the extent that judgment was en[16]*16tered in the sum of $97,500 with interest and costs on its first cause of action.

Thereafter, when the judgment remained unsatisfied, as it does at least in part to the present day, the plaintiff filed a motion for sanctions, including but not limited to attorneys’ fees, alleging violations of Rules 111 and 56(g)2 of the Federal Rules of Civil Procedure. Defendants filed a cross motion on April 9, 1980 requesting the District Court to deny plaintiff’s motion for sanctions and

. . . granting plaintiff’s motion for an order to compute the total amount due plaintiff as per order of this court; that the court direct plaintiff to accept defendant’s check for said to be computed amount. That upon payment plaintiff be directed to execute and deliver satisfaction of judgment and to cancel Notice of Pendency, to stay enforcement of the Order and Judgment by plaintiff, its agents, attorneys and Sheriff Edward A. Pichler, and for such other and further relief as may be deemed just and proper in the premises herein.3

By memorandum and order, dated April 23, 1980, Judge Owen referred plaintiff’s motion for sanctions and defendants’ cross-motion to me to hear and report.

FACTS

In the middle of October, 1979, the Republic of Cape Verde engaged the law firm of Van Ginkel & Benjamin to represent it in the purchase of the building located at 13 East 75th Street, New York, New York.4 A contract signing was scheduled for October 30, 1979. Ambassador Da Luz and his counsel, Robert W. Benjamin, met with defendant Joseph M. Aronow at his office on that date. Mr. Benjamin’s affidavit describes the relevant contract signing events as follows:

Just prior to that meeting, Ambassador Da Luz informed me that Chase Manhattan Bank, the financial advisor to the Republic of Cape Verde, had advised him not to proceed with the signing of the contract until an appraisal of the property was completed. This problem was raised with Mr. Aronow at the meeting. Ambassador Da Luz indicated that it would take ten days to complete the appraisal. Mr. Aronow was eager to have the contract signed and suggested that we could resolve the problem by signing the contract and incorporating a new provision into the contract which would allow the Republic of Cape Verde an absolute right of cancellation of the contract without penalty after the completion of an appraisal. The language of this provision was mutually agreed upon and Mr. Aronow inserted the language of the provision at paragraph 6d of the proposed contract. Both Mr. Aronow and Ambassador Da Luz then initialed this provision. The contract (a copy of which is annexed hereto as Exhibit A) was then signed by Ambassador Da Luz on behalf of the [17]*17Republic of Cape Verde and by Mr. Aronow on behalf of A & A Partners. Ambassador Da Luz gave Mr. Aronow a check in the amount of $97,500 as a deposit on the property. (¶ 4).

The contractual provision added read:

6d) Notwithstanding any other provisions to the contrary, the seller does hereby grant to the purchaser the right, which expires at 5 P.M. November 9, 1979 to cancel this contract by giving written notice of rejection of the contract by the Ambassador of the Republic of Cape Verde without any penalty or payment whatsoever. Said notice shall be addressed to Seller and delivered to Seller’s attorney, Joseph M. Aronow, Esq., 888 Seventh Avenue, N.Y. 12019.

After the Republic of Cape Verde received an appraisal valuing the property at $650,000, considerably less than the earlier agreed upon sales price of $975,000, its counsel hand delivered a notice by 3:00 P.M. on November 9, 1980, signed by Ambassador Da Luz rejecting the contract and requesting the return of the deposit of $97,-500. (Exhibit A to Wesseley affidavit). On the same day, defendant Aronow acknowledged receipt of the November 9, 1979 letter from Mr. Wesseley (Exhibit B to the Wesseley affidavit). Mr. Aronow advised Mr. Wesseley in his acknowledgement:

Mr. Apfelbaum [Mr. Aronow’s partner] is out of town at the present and is expected to return on Monday, November 12th, at which time your letter and notice shall be discussed with him and you shall be advised promptly thereon.

At the hearing before me on May 29, 1980, Mr. Wesseley testified5 about the events of the ensuing days:

I received no call on Monday. I called him both Tuesday and Wednesday and he finally responded to my call on Wednesday and said, “Look, I haven’t had a chance to talk to my client yet. It appears to me that you are entitled to the money back, but I really need to talk to him about it first,” and I said, “I really don’t understand why you need to talk to him. It’s very clear from the contract that we are entitled to the money back and I really would appreciate knowing whether or not I am going to get a check by the end of this week, which was a week after we were entitled to the return of the check.
* * * * * *
If I don’t hear from you by this Friday I will have no option but to exercise my legal rights on this—my client’s legal rights.”
He did not return my call on Friday. I called him again on Friday afternoon and he did not return my call.
The following week we had one final conversation before I turned the matter over to Mr. Simon and at that point again I said, “Look, let’s avoid all of the costs and the problems to both of you on this. Why can’t we get our money back?” He said, “I have talked to my partner. We think that we are going to give you the money back, but don’t pressure us on it. I don’t like the way that you have pressured me on this and tried to get the money back on such short notice.”
My response was that I had done nothing untoward in terms of pressuring him, I had simply followed our rights under the contract.

(Tr. 55- 57).

The Republic of Cape Verde, not having received the deposit back, engaged the firm of Hertzog, Calamari and Gleason as litigation counsel. Mr. Simon, an associate of the firm, upon the firm’s retention called Mr. Aronow:

I believe I initiated the phone call to Mr. Aronow and I informed him that I had been retained to recoup these monies and asked him what the problem was; was [18]*18there any reason why the money shouldn’t be forthcoming.

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Bluebook (online)
89 F.R.D. 14, 1980 U.S. Dist. LEXIS 17869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/republic-of-cape-verde-v-a-a-partners-nysd-1980.