16-3632-cv
Sunoco, Inc. v. 175-33 Horace Harding Realty Corp.

                              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.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
6th day of September, two thousand seventeen.

Present:         ROSEMARY S. POOLER,
                 GERARD E. LYNCH,
                            Circuit Judges.
                 BRIAN M. COGAN,1
                            District Judge.

_____________________________________________________

SUNOCO, INC. (R&M),

                                  Plaintiff-Appellee,

                         v.                                                 16-3632-cv

175-33 HORACE HARDING REALTY CORP.,

                        Defendant-Appellant.2
_____________________________________________________

Appearing for Appellant:          Kenneth L. Robinson, Robinson & Associates, P.C., Syosett, N.Y.

Appearing for Appellee:           Henry F. Reichner, Reed Smith LLP, Philadelphia, PA.


1
  Judge Brian M. Cogan, United States District Court for the Eastern District of New York,
sitting by designation.
2
    The Clerk of the Court is directed to amend the caption as above.


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Appeal from the United States District Court for the Eastern District of New York (Seybert, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         175-33 Horace Harding Realty Corp. (“Horace Harding”) appeals from the September
30, 2016 judgment of the United States District Court for the Eastern District of New York
(Seybert, J.) awarding Sunoco, Inc. (R&M) $1,294,416.75 on its breach of contract claim. The
district court granted Sunoco partial summary judgment finding Horace Harding liable for breach
of contract in a September 4, 2013 order, and subsequently determined damages for that breach
in a bench trial. We assume the parties’ familiarity with the underlying facts, procedural history,
and specification of issues for review.

        “We review the district court’s decision to grant summary judgment de novo.” Kerman v.
City of New York, 261 F.3d 229, 234 (2d Cir. 2001). “We review a district court’s bench trial
findings of fact for clear error and its conclusions of law de novo.” Henrietta D. v. Bloomberg,
331 F.3d 261, 271 (2d Cir. 2003). “Factual findings should not be set aside unless they are
without adequate support in the record, are against the clear weight of the evidence, or are the
product of an erroneous view of the law.” Id. (internal quotation marks omitted).

         We affirm, primarily for the reasons set forth in the district court’s thorough and well-
reasoned opinions of September 4, 2013 and May 27, 2015. In its summary judgment order, the
district court correctly found no material dispute of fact as to Horace Harding’s liability for
breach of contract, as the contract of sale bound the parties to the findings of the agreed-upon
environmental consultant, whether or not the district court ultimately agreed with the
consultant’s conclusions. The district court’s subsequent factual findings with respect to damages
were well-supported by the record, and Horace Harding cannot meet its burden of demonstrating
such findings are clearly erroneous. Horace Harding has also failed to identify any legal error.

       We have considered the remainder of Horace Harding’s arguments and find them to be
without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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