     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




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