United States District Court, D. Connecticut
RULING ON MOTION FOR SUMMARY JUDGMENT
R. UNDERHILL, UNITED STATES DISTRICT JUDGE.
Edwards sued CBD & Sons (“CBD”) and its
attorney, Twersky PLLC (“Twersky”), in connection
with a loan issued to Edwards by CBD and secured by a
mortgage on two properties in Meriden, Connecticut. The
defendants have moved for summary judgment against all of
Edwards's claims and in favor of their two counterclaims.
Edwards has moved to amend his complaint. I grant the
defendants' motion with respect to all of Edwards's
claims and CBD's counterclaim for breach of contract. I
deny the defendants' motion with respect to Twersky's
counterclaim for indemnification, and I deny Edwards's
motion to amend his complaint.
Standard of Review
judgment is appropriate when the record demonstrates that
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). When ruling on a summary
judgment motion, the court must “view the evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in its favor.” Sologub v.
City of New York, 202 F.3d 175, 178 (2d Cir. 2000);
Aldrich v. Randolph Ctrl. Sch. Dist., 963 F.2d 520,
523 (2d Cir. 1992) (court is required to “resolve all
ambiguities and draw all inferences in favor of the nonmoving
party”). “The burden of showing that no genuine
factual dispute exists rests upon the moving party.”
Carlton v. Mystic Transp., 202 F.3d 129, 133 (2d
Cir. 2000). When a motion for summary judgment is properly
supported by documentary and testimonial evidence, however,
the nonmoving party may not rest upon the mere allegations or
denials of the pleadings, but must present sufficient
evidence supporting its position “to require a jury or
judge to resolve the parties' differing versions of the
truth at trial.” Anderson v. Liberty
Lobby, 477 U.S. 242, 249 (1986); Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
trial court's function at this stage is to identify
issues to be tried, not decide them, ” Graham v.
Long Island R.R. Co., 230 F.3d 34, 38 (2d Cir. 2000),
and so “[o]nly when no reasonable trier of fact could
find in favor of the non-moving party should summary judgment
be granted.” White v. ABCO Eng'g Corp.,
221 F.3d 293, 300 (2d Cir. 2000). Summary judgment therefore
is improper “[w]hen reasonable persons, applying the
proper legal standards, could differ . . . on the basis of
the evidence presented.” Sologub, 202 F.3d at
the mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact. . . . Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
Anderson, 477 U.S. at 247-48.
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial, ” and in such circumstances, there is
“no genuine issue as to any material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); accord Goenaga v. March of Dimes Birth Defects
Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant's
burden satisfied if it can point to an absence of evidence to
support an essential element of nonmoving party's claim).
To present a “genuine” issue of material fact and
avoid summary judgment, the record must contain contradictory
evidence “such that a reasonable jury could return a
verdict for the non-moving party.” Anderson,
477 U.S. at 248.
6, 2012, Edwards obtained a commercial promissory note from
CBD in the amount of $750, 000, due and payable June 1, 2013.
The note was secured by an open-end commercial mortgage deed
on two properties located on Colony Street in Meriden,
31, 2013, Edwards and CBD entered into a modification
agreement that extended the maturity date of the June 6, 2012
note and mortgage from June 1, 2013 to May 31, 2014. On April
4, 2014, Edwards and CBD entered into a forbearance agreement
with respect to interest payments. Edwards has been in
default of the note since May 31, 2014.
2016, Edwards and CBD received notice of a City of Meriden
tax sale to be conducted on August 3, 2016. They also were
informed that following the tax sale, Edwards had a six-month
right of redemption and could void the tax sale by paying his
property tax delinquency by February 3, 2017.
applied for financing with Riverdale Funding
(“Riverdale”) in December 2016. On January 4,
2017, Edwards informed CBD that Riverdale had approved his
loan request, and asked that CBD accept a discounted payoff
of the amounts due on its note. CBD agreed to accept the
discounted payoff. As a condition of accepting the discounted
payoff, CBD required Edwards to enter into an Escrow
Agreement that required Edwards to place the deed to the
properties in escrow. The agreement also provided that if either
(a) the Riverdale loan was not made, or (b) the loan was not
made in an amount sufficient to satisfy the discounted payoff
amount of $180, 000 and the $92, 751.07 tax lien on the
properties, then CBD would have the right to record the deed
and take the properties.
February 2, 2017, Edwards and CBD entered into an Escrow
Agreement in accordance with the above terms. See
Id. In relevant part, the agreement provides as follows:
WHEREAS, Mortgagor and Mortgagee executed and
entered into an Open End Commercial Mortgage Deed (the
“Mortgage”) and Commercial Promissory Note (the
“Note”) on or about June 6, 2012, in the
principal amount of Seven Hundred and Fifty Thousand Dollars
($750, 000.00), which after Mortgagor's default, has
accrued interest and fees that now totals over One Million
Dollars ($1, 000, 000.00);
* * *
WHEREAS, Mortgagor has not made any payments towards
the Note and has completely defaulted;
* * *
WHEREAS, Mortgagee was forced to pay off a tax lien
on the Properties in the amount of approximately Ninety Two
Thousand, Seven Hundred and Fifty One Dollars and Seven Cents
($92, 751.07) because Mortgagor did not pay any taxes on the
WHEREAS, Mortgagor has sought refinancing to satisfy
the Note, albeit at a steep discount, and has received a
soft-offer from Riverdale Funding, LLC
(“Riverdale”) in the amount of One Hundred and
Eighty Thousand Dollars ($180, 000.00), plus reimbursement
for the delinquent taxes Mortgagee paid, in the amount of
approximately Ninety Two Thousand, Seven Hundred and Fifty
One Dollars and Seven Cents ($92, 751.07), totaling a
refinance amount of approximately Two Hundred and Seventy Two
Thousand, Seven Hundred and Fifty One Dollars and Seven Cents
($272, 751.7) (the “Riverdale Refinance”);
WHEREAS, the Riverdale Refinance has not yet closed
or materialized yet but Mortgagor anticipates it will close
WHEREAS, in order to facilitate Mortgagor in having
additional time to close the Riverdale Refinance, and to
provide additional security to Mortgagee relating to the
Properties, and the Note and Mortgage they secure, the
Parties have caused or will cause a certain deed to the
Properties to be deposited in escrow with AARON TWERSKY, ESQ.
(“Twersky”) in accordance with the terms and
provisions of this Escrow Agreement.
NOW THEREFORE, in consideration of the mutual
covenants and promises contained herein, and for other good
and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the undersigned
agree as follows:
* * *
2. Escrow Terms:
a. This Escrow Agreement provides for Mortgagor to execute
and sign a deed to the properties, conveying full and
ownership of the noted Properties from Mortgagor to Mortgagee
b. Aaron Twersky, Esq., of Twersky PLLC, agrees to be the
c. The Deed shall be held in Escrow by Twersky pursuant to
the following terms:
i. Mortgagor has until March 22, 2017, time being of the
essence, to secure, finalize and close on the Riverdale
Refinance, subject to Mortgagee's exclusive and complete
consent and approval to its terms and conditions.
ii. If by March 22, 2017, the Riverdale Refinance has not yet
closed, completely, or the terms of the Riverdale Refinance
are not satisfactory to Mortgagee in its sole discretion,
Twersky, as Escrow Agent for Mortgagee, has the full right
and authority to release the Deed being held in Escrow for
filing and recording with the city of Meriden,
Connecticut's property Register and/or Clerk's
iii. Mortgagor is hereby prohibited from conveying or
changing the individual or entity that retains title to the
noted Properties during the term of this Agreement in any
3. Tenancy Rights Release:
If the Riverdale Refinance does not materialize for any
reason and the Deed relating to the Properties is filed and
recorded, Mortgagor agrees to fully give up, disclaim and
release any tenancy rights he, or any of his agents, may have
to the Properties and agrees to vacate the Properties within
Fifteen (15) days after notice to the Mortgagor by Mortgagee.
Notice to Mortgagor may be effected in oral or written form.
If Mortgagor does not vacate the Properties within the noted
Fifteen (15) days, Mortgagor hereby consents and authorizes
Mortgagee to physically remove Mortgagor's property and
personal belongings from the Properties and to dispose of
[them] as it wishes. Mortgagor hereby further consents and
authorizes Mortgagee to seek the assistance of the Marshal or
Sheriff to evict Mortgagor immediately from the Properties,
at the full cost and reimbursement of Mortgagor.
4. Bankruptcy Court Restriction:
Mortgagor is hereby prohibited and restricted from filing any
action in Bankruptcy Court or any other Court that would
delay or stay the terms of this Agreement, whether intended
on or not. Mortgagor consents and acknowledges that any
filing of any kind by Mortgagor, or any agent, shall be
treated as an immediate unwaivable breach of this Agreement
and Mortgagor authorizes Twersky to release, record and file
the Deed accordingly.
* * *
6. No Duress:
The undersigned state and acknowledge that the Parties are
signing this Agreement freely, willfully, not under duress
and not under any undue influence, by any other party,
person, or for any other reason, when signing and executing
* * *
9. Representation by Counsel:
The Parties hereby acknowledge and state that they have read
this Agreement in its entirety, that they understand the
contents thereof, that their execution of this Agreement is
voluntary, that this Agreement is intended to resolve
disputed claims and the consideration provided herein is fair
and reasonable, and that the Parties have relied upon and/or
had the opportunity to seek the legal advice of the attorneys
of their own choice and such other persons as they may have
deemed appropriate, prior to executing this Agreement.
10. Governing Law and Interpretation:
This Agreement shall be governed and conformed in accordance
with the laws of the State of New York without regard to its
conflict of laws provision. In the event of a breach of any
provision of this Agreement, either Party may institute an
action specifically to enforce any term or terms of this
Agreement and/or to seek any damages for breach in the State
or Federal courts of the State of New York.
Agreement, Ex. B to Local Rule 56(a)1 Statement, Doc. No.
64-6, at 2-5.
also signed a Quitclaim Deed that “d[id] remise,
release and forever QUITCLAIM . . . all the right, title,
interest, claim and demand” to the Colony Street
properties to CBD. Quitclaim Deed, Ex. A to Am. Mot. for TRO,
Doc. No. 16-1, at 10. CBD placed the Quitclaim Deed in escrow
pending the deadline in the Escrow Agreement. After the
agreement was executed, CBD redeemed the properties from the
tax sale by paying the $92, 751.07 tax lien.
never obtained financing from Riverdale. Instead, on March
13, 2017, he commenced this lawsuit against CBD and Twersky
in Connecticut Superior Court. Edwards alleged that both
defendants (1) violated the Connecticut Unfair Trade
Practices Act (“CUTPA”); (2) breached a contract
with Edwards; (3) intentionally inflicted emotional distress;
(4) negligently inflicted emotional distress; (5) were
negligent; (6) fraudulently misrepresented; (7) fraudulently
concealed; and (8) breached the implied covenant of good
faith and fair dealing.
defendants served on March 20, 2017, and-considering the
filing of the lawsuit an immediate breach of the Escrow
Agreement-CBD filed the deed to the properties in the Meriden
Land Records on March 21, 2017. That same day, the defendants
removed the case from Superior Court to this court.
response to the defendants' motion for summary judgment,
Edwards filed a 225-page opposition memorandum accompanied by
an additional 129 pages of supporting documents. Noting that
“Local Rule 7(a)(5) provides that . . .
‘memoranda . . . shall be no more than forty (40) . . .
pages, '” see Order, Doc. No. 76, at 1
(quoting D. Conn. Local R. Civ. P. 7(a)(5)), I concluded that
Edwards's opposition brief was “excessive”
and “threaten[ed] to impose significant burdens on the
defendants and the court.” Id. Therefore, I
ordered Edwards to file a corrected opposition within two
weeks. Bearing in mind that “pro se plaintiffs
should be granted special leniency regarding procedural
matters, ” LeSane v. Hall's Sec. ...