     11-4496
     Vioni v. American Capital Strategies, Ltd., et al.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
                                      (Filed Under Seal)
                                      (Redacted Version)

     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 18th day of January, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JON O. NEWMAN,
 9                REENA RAGGI,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       LISA VIONI and HEDGE CONNECTION,
14       INC.,
15                Plaintiffs-Appellants,
16
17                    -v.-                                               11-4496
18
19       AMERICAN CAPITAL STRATEGIES, LTD.;
20       PROVIDENCE INVESTMENT MANAGEMENT,
21       L.L.C.; PROVIDENCE INVESTMENT
22       PARTNERS, L.L.C.; and RUSSELL JEFFREY,
23                Defendants-Appellees,
24       - - - - - - - - - - - - - - - - - - - -X
25


                                                  1
 1   FOR APPELLANT:             Michael Quinn Carey, Carey &
 2                              Associates LLC, New York, New
 3                              York.
 4
 5   FOR APPELLEE AMERICAN      Stewart D. Aaron, (Erik C.
 6   CAPITAL STRATEGIES,        Walsh, on the brief), Arnold &
 7   LTD.:                      Porter, LLP, New York, New York.
 8
 9
10   FOR APPELLEES              Neil H. Klausner, (David S.
11   PROVIDENCE INVESTMENT      Greenberg, Davis & Gilbert LLP,
                                New York, New York; Gerald C.
12   MANAGEMENT, L.L.C.;
                                Maria, John F. Kelleher,
13   PROVIDENCE INVESTMENT      Higgins, Cavanaugh & Cooney,
14   PARTNERS, L.L.C.; and      LLP, Providence, Rhode Island on
15   RUSSELL JEFFREY:           the brief), Davis & Gilbert LLP,
                                New York, New York

16
17        Appeal from a judgment of the United States District
18   Court for the Southern District of New York (Crotty, J.).
19
20        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
21   AND DECREED that the judgment of the district court be
22   AFFIRMED IN PART and REVERSED IN PART.
23
24        Lisa Vioni appeals from the judgment of the United
25   States District Court for the Southern District of New York
26   (Crotty, J.), granting summary judgment in favor of
27   defendants-appellees and imposing sanctions on Vioni’s
28   attorney, Michael Quinn Carey. Vioni brought this action
29   for breach of contract and quantum meruit to recover a
30   finder’s fee she alleges was owed for introducing Russell
31   Jeffrey of Providence Investment Management, L.L.C., and
32   Providence Investment Partners, L.L.C. (collectively
33   “Providence”) to Robert Grunewald of American Capital
34   Strategies, Ltd. (“American Capital”). The district court
35   held that Vioni had failed to satisfy New York’s statute of
36   frauds. We assume the parties’ familiarity with the
37   underlying facts, the procedural history, and the issues
38   presented for review.
39
40        We review de novo a district court’s grant of summary
41   judgment. Mario v. P&C Food Mkts., Inc., 313 F.3d 758, 763

                                  2
 1   (2d Cir. 2002). We review a district court’s decision to
 2   impose sanctions for abuse of discretion. Wolters Kluwer
 3   Fin. Sevs., Inc. v. Scivantage, 564 F.3d 110, 113 (2d Cir.
 4   2009).
 5
 6        1.  “In order to recover in quantum meruit under New
 7   York law, a claimant must establish ‘(1) the performance of
 8   services in good faith, (2) the acceptance of the services
 9   by the person to whom they are rendered, (3) an expectation
10   of compensation therefor, and (4) the reasonable value of
11   the services.’” Mid-Hudson Catskill Rural Migrant Ministry,
12   Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir. 2005)
13   (quoting Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 69
14   (2d Cir. 2000)). Both parties must understand that the
15   party performing the services has a reasonable expectation
16   of compensation for those services. See Aluminum Fair, Inc.
17   v. Abdella, 456 N.Y.S.2d 184, 185 (App. Div. 3d Dept. 1982);
18   DiBella v. Hopkins, 187 F. Supp. 2d 192, 201 (S.D.N.Y.
19   2002).
20
21        2.  Under New York’s statute of frauds, any “contract
22   to pay compensation for services rendered in negotiating a
23   loan, or in negotiating the purchase [or] sale . . . of a
24   business opportunity, business, its good will, inventory,
25   fixtures or an interest therein,” must be in writing to be
26   enforceable. N.Y. Gen. Oblig. Law § 5-701(a)(10). This
27   applies to claims for quantum meruit. Morris Cohon & Co. v.
28   Russell, 23 N.Y. 2d 569 (1969). To satisfy the statute of
29   frauds for a claim for quantum meruit, “a sufficient
30   memorandum need only evidence the fact of plaintiff’s
31   employment by defendant to render the alleged services.”
32   Id. at 575-76. The memorandum need not contain an express
33   agreement to pay for the services; the agreement can be
34   found “by reasonable construction and necessary
35   implication.” Id. at 574. The memorandum may postdate the
36   services. See id. at 574-76.
37
38        3.  Vioni’s claim against American Capital fails
39   because the only discussions Vioni had with Grunewald about
40   compensation involved potential marketing work for American
41   Capital, work that never materialized. That part of the
42   district court’s opinion granting summary judgment in favor
43   of American Capital is therefore AFFIRMED.
44

                                  3
 1        4.  Vioni’s claim against Jeffrey and Providence, on
 2   the other hand, satisfies the statute of frauds. Writings
 3   from March 26, 2007; April 19, 2007; and June 5, 2007
 4   together permit a finding that Jeffrey hired Vioni to
 5   introduce him to persons with whom Jeffrey could enter into
 6   any mutually beneficial arrangement for his investment
 7   business. That part of the district court’s opinion
 8   granting summary judgment in favor of Jeffrey and Providence
 9   is therefore REVERSED.
10
11        5.  The district court did not abuse its discretion in
12   imposing sanctions on Vioni’s attorney, Michael Quinn Carey,
13   for taking wasteful depositions. The district court’s award
14   was not excessive and was supported by a well-reasoned and
15   thorough accounting of the precise way in which the
16   depositions at issue were frivolous, repetitive, or time-
17   wasting. We therefore AFFIRM the district court’s decision
18   to impose sanctions.
19
20        For the foregoing reasons, we hereby AFFIRM IN PART and
21   REVERSE IN PART the judgment of the district court. The
22   case is remanded to the district court for further
23   proceedings.
24
25
26                              FOR THE COURT:
27                              CATHERINE O’HAGAN WOLFE, CLERK
28




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