On May 23, 2018 a
Motion-Secondary
was filed
involving a dispute between
Unique Logistics International,
and
Pem-America, Inc.,
for Commercial - Contract
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 12/05/2018 03:09 PM INDEX NO. 652583/2018
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/05/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------------x
UNIQUE LOGISTICS INTERNATIONAL (NYC), LLC,
Index No: 652583/18
Plaintiff,
-against-
PEM-AMERICA, INC.,
Defendant.
------------------------------------------------------------------------x
STEVEN B. ROSS, an attorney admitted to practice law in the Courts of the State of New
York, affirms the following under penalty of perjury:
1. . I am the attorney for the Plaintiff, UNIQUE LOGISTICS INTERNATIONAL (NYC), LLC
(“Unique”). I am fully familiar with the facts and circumstances regarding this matter. The
basis of my knowledge is a review of the case file and relevant documents and discussions
with my client.
2. I submit this Affirmation in opposition to the cross motion and in further support of the
motion for summary judgment.
3. The cases cited by PEM regarding the “ripeness” of this motion relating to the accrual of the
claim are not relevant in that the October 31, 2017 indemnification agreement specifically
extended PEM’s obligation to indemnify beyond the indemnity or contribution obligation
referenced in the cases cited by PEM.
4. That October 31, 2017 indemnification agreement specifically provided indemnification
which extended to “all claims, liabilities, demands, actions, costs and consequences that
might be brought forward by Valiant Glass Works Pvt. Ltd. or Asher Home.”
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FILED: NEW YORK COUNTY CLERK 12/05/2018 03:09 PM INDEX NO. 652583/2018
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/05/2018
5. The agreement to indemnify has to be read to include the consequences faced by Unique and
its affiliate in India -- the criminal case which is pending in India.
6. The language of the October 31, 2017 indemnification agreement was deliberately broad to
extend beyond the simple indemnification and contribution. The October 31, 2017 letter of
indemnity was annexed to the initial motion papers and is annexed hereto again for the
convenience of the Court as Exhibit “C”.
7. Pursuant to PEM’s interpretation as set forth in its opposition to the motion and cross motion,
despite the broad language of the October 31, 2017 letter of indemnity, Unique and its
affiliate in India as well as officers and employees of that affiliate could be criminally
charged and even jailed but no claim would accrue because there was no civil judgment --
even though the amount of the liability to Valiant is not in dispute.
8. There is no question as to Unique’s liability and the amount of liability.
9. There is no question that Unique owes the money to Valiant.
10. As the freight forwarder which released the shipment without the presentment of the OBL,
Unique is strictly liable. There is no defense.
11. PEM argues that they have defenses to Valiant’s claim that it is entitled to payment because
the goods were defective . However, whether PEM owes the money to Valiant is wholly
irrelevant.
12. PEM thought they could reach a deal with Valiant to reduce the amount PEM owed Valiant.
PEM agreed to indemnify Unique for any amount Unique was liable to pay in the event PEM
could not negotiate its own liability down.
13. PEM could not reduce the amount. So, Unique is responsible for the full value of the
shipment.
14. Finally, PEM’s argument that summary judgment is premature because full discovery has not
yet occurred is misplaced.
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FILED: NEW YORK COUNTY CLERK 12/05/2018 03:09 PM INDEX NO. 652583/2018
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/05/2018
15. There are no factual issues which the Court needs in order to determine that PEM agreed to a
broad letter of indemnity in connection with the release of the shipment without unique
having been provided the OBL.
16. October 31, 2017 letter of indemnity broadly requires indemnification for claims, liabilities,
demands, actions, costs and consequences which might be incurred by Unique.
17. There is no question that Unique and its affiliate in India (also specifically covered by the
provisions of the October 31, 2017 letter of indemnity) have been presented with the claim
and demand and have incurred liability and consequences (the criminal investigation against
Unique’s affiliate and its officers) in connection with the release of the shipment.
18. Further, PEM had the opportunity to serve discovery demands and chose not to do so.
19. At the same time that PEM chose not to serve any discovery demands, unique (by its
attorneys) did serve discovery demands. However, PEM chose to ignore Unqiue’s demand
for discovery and inspection, never responding.
20. My office served a demand for discovery and inspection on July 17, 2018. PEM has never
responded to that discovery demand.
21. And while PEM claims that summary judgment should not be granted because PEM has not
had the opportunity to conduct discovery, PEM fails to set forth any factual dispute factual
issues which might justify denial of summary judgment.
22. As set forth in the Affidavits of Sunandan Ray and Morgan Jiang, the documentary evidence
demonstrates that there is no factual dispute as to any of the red herring allegations
propounded by PEM.
23. The material facts of this case are undisputed. There can be no dispute that Unique as the
freight forwarder is liable to Valiant for the release of the shipment prior to receipt of the
OBL. There is no dispute that Valiant has made a claim and demand against Unique’s
affiliate in India and that Unique’s affiliate in India faces consequences as a result of that
criminal claim in India.
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NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/05/2018
24. There can be no material dispute that PEM executed the broad letter of indemnity agrcciñg to
indemnify Unique and its afMiates as set forth in that
indemnity agreement.
25. PEM has refused to honor the terms of the October 31, 2017 indemnity agreemcñt and has
taken no action to
satisfy
the undisputed amount due to Valiant or to reimburse or indc=ñify
Unique in connection with the üñdisputed claim by Valiant.
26. For the reasons set forth above, it is
respectfully
submitted that the defenses to the letter of
indemnity asserted
by PEM do not apply and the motion for
2--=y judgment sheüld be
granted.
WHEREFORE, I
respectfully
request that the Court grant the relief sought by Unique and
deny the relief sought in the cross motion.
Dated: New York, New York
December 5, 2018
STEVEN B. ROSS
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Document Filed Date
December 05, 2018
Case Filing Date
May 23, 2018
Category
Commercial - Contract
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FILED: NEW YORK COUNTY CLERK 12/05/2018 03:09 PM INDEX NO. 652583/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/05/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------x UNIQUE LOGISTICS INTERNATIONAL (NYC), LLC, Index No: 652583/18 Plaintiff, -against- PEM-AMERICA, INC., Defendant. ------------------------------------------------------------------------x STEVEN B. ROSS, an attorney admitted to practice law in the Courts of the State of New York, affirms the following under penalty of perjury: 1. . I am the attorney for the Plaintiff, UNIQUE LOGISTICS INTERNATIONAL (NYC), LLC (“Unique”). I am fully familiar with the facts and circumstances regarding this matter. The basis of my knowledge is a review of the case file and relevant documents and discussions with my client. 2. I submit this Affirmation in opposition to the cross motion and in further support of the motion for summary judgment. 3. The cases cited by PEM regarding the “ripeness” of this motion relating to the accrual of the claim are not relevant in that the October 31, 2017 indemnification agreement specifically extended PEM’s obligation to indemnify beyond the indemnity or contribution obligation referenced in the cases cited by PEM. 4. That October 31, 2017 indemnification agreement specifically provided indemnification which extended to “all claims, liabilities, demands, actions, costs and consequences that might be brought forward by Valiant Glass Works Pvt. Ltd. or Asher Home.” 1 1 of 4 FILED: NEW YORK COUNTY CLERK 12/05/2018 03:09 PM INDEX NO. 652583/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/05/2018 5. The agreement to indemnify has to be read to include the consequences faced by Unique and its affiliate in India -- the criminal case which is pending in India. 6. The language of the October 31, 2017 indemnification agreement was deliberately broad to extend beyond the simple indemnification and contribution. The October 31, 2017 letter of indemnity was annexed to the initial motion papers and is annexed hereto again for the convenience of the Court as Exhibit “C”. 7. Pursuant to PEM’s interpretation as set forth in its opposition to the motion and cross motion, despite the broad language of the October 31, 2017 letter of indemnity, Unique and its affiliate in India as well as officers and employees of that affiliate could be criminally charged and even jailed but no claim would accrue because there was no civil judgment -- even though the amount of the liability to Valiant is not in dispute. 8. There is no question as to Unique’s liability and the amount of liability. 9. There is no question that Unique owes the money to Valiant. 10. As the freight forwarder which released the shipment without the presentment of the OBL, Unique is strictly liable. There is no defense. 11. PEM argues that they have defenses to Valiant’s claim that it is entitled to payment because the goods were defective . However, whether PEM owes the money to Valiant is wholly irrelevant. 12. PEM thought they could reach a deal with Valiant to reduce the amount PEM owed Valiant. PEM agreed to indemnify Unique for any amount Unique was liable to pay in the event PEM could not negotiate its own liability down. 13. PEM could not reduce the amount. So, Unique is responsible for the full value of the shipment. 14. Finally, PEM’s argument that summary judgment is premature because full discovery has not yet occurred is misplaced. 2 2 of 4 FILED: NEW YORK COUNTY CLERK 12/05/2018 03:09 PM INDEX NO. 652583/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/05/2018 15. There are no factual issues which the Court needs in order to determine that PEM agreed to a broad letter of indemnity in connection with the release of the shipment without unique having been provided the OBL. 16. October 31, 2017 letter of indemnity broadly requires indemnification for claims, liabilities, demands, actions, costs and consequences which might be incurred by Unique. 17. There is no question that Unique and its affiliate in India (also specifically covered by the provisions of the October 31, 2017 letter of indemnity) have been presented with the claim and demand and have incurred liability and consequences (the criminal investigation against Unique’s affiliate and its officers) in connection with the release of the shipment. 18. Further, PEM had the opportunity to serve discovery demands and chose not to do so. 19. At the same time that PEM chose not to serve any discovery demands, unique (by its attorneys) did serve discovery demands. However, PEM chose to ignore Unqiue’s demand for discovery and inspection, never responding. 20. My office served a demand for discovery and inspection on July 17, 2018. PEM has never responded to that discovery demand. 21. And while PEM claims that summary judgment should not be granted because PEM has not had the opportunity to conduct discovery, PEM fails to set forth any factual dispute factual issues which might justify denial of summary judgment. 22. As set forth in the Affidavits of Sunandan Ray and Morgan Jiang, the documentary evidence demonstrates that there is no factual dispute as to any of the red herring allegations propounded by PEM. 23. The material facts of this case are undisputed. There can be no dispute that Unique as the freight forwarder is liable to Valiant for the release of the shipment prior to receipt of the OBL. There is no dispute that Valiant has made a claim and demand against Unique’s affiliate in India and that Unique’s affiliate in India faces consequences as a result of that criminal claim in India. 3 3 of 4 FILED: NEW YORK COUNTY CLERK 12/05/2018 03:09 PM INDEX NO. 652583/2018 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/05/2018 24. There can be no material dispute that PEM executed the broad letter of indemnity agrcciñg to indemnify Unique and its afMiates as set forth in that indemnity agreement. 25. PEM has refused to honor the terms of the October 31, 2017 indemnity agreemcñt and has taken no action to satisfy the undisputed amount due to Valiant or to reimburse or indc=ñify Unique in connection with the üñdisputed claim by Valiant. 26. For the reasons set forth above, it is respectfully submitted that the defenses to the letter of indemnity asserted by PEM do not apply and the motion for 2--=y judgment sheüld be granted. WHEREFORE, I respectfully request that the Court grant the relief sought by Unique and deny the relief sought in the cross motion. Dated: New York, New York December 5, 2018 STEVEN B. ROSS 4 4 of 4