   17-2774
   First Technology Capital, Inc. v. Airborne, Inc.

                     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 ASUMMARY ORDER@).     A
PARTY CITING TO 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 11th day of June, two thousand eighteen.

   PRESENT:
            DENNIS JACOBS,
            CHRISTOPHER F. DRONEY,
                 Circuit Judges,
            STEFAN R. UNDERHILL,*
                 District Judge.
   _____________________________________

   First Technology Capital, Inc.,
            Plaintiff-Appellant,

              -v.-                                    17-2774

   Airborne, Inc., DBA FirstFlight,
            Defendant - Third-Party Plaintiff - Appellee,




        *   Judge Stefan R. Underhill, United States District
   Court for the District of Connecticut, sitting by
   designation.

                                   1
Tailwind Capital LLC, Freighter Solutions, LLC, Solutions 4
VIP, LLC,
          Third-Party Defendants.
____________________________________

FOR PLAINTIFF-APPELLANT:          MICHAEL J. GARTLAND, DelCotto
                                  Law Group PLLC, Lexington,
                                  KY.

     Appeal from a judgment of the United States District
Court for the Western District of New York (Wolford, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is VACATED
AND REMANDED.

     In this diversity case, First Technology Capital, Inc.
(“FTC”) alleges that Airborne, Inc. (“Airborne”) breached
its contractual obligation to purchase an aircraft from FTC
when it refused to accept the aircraft that FTC tendered.
The United States District Court for the Western District of
New York (Wolford, J.) granted Airborne’s motion for
judgment on the pleadings based on the perfect tender rule
and consequently denied as moot FTC’s motion for summary
judgment on the issue of contract reformation. FTC’s sole
argument on appeal is that the court erred by failing to
consider its request for reformation prior to adjudicating
Airborne’s perfect tender defense. Airborne has declined to
participate in this appeal, neither filing a written brief
nor appearing at oral argument to defend the judgment below.
We assume the parties’ familiarity with the underlying
facts, the procedural history, and the issues presented for
review.

     FTC’s request for reformation has been properly
pleaded,1 but we express no view on its merit. FTC’s appeal


    1 FTC clearly pleaded the facts underlying a claim of
mutual mistake, and no more is needed to support a request
for reformation. See Smith v. Bear, 237 F.2d 79, 86 (2d
Cir. 1956) (“[A] plaintiff is entitled to pursue [a] claim
for . . . reformation” even if “he fail[s] to seek it

                              2
concerns only the court’s sequence of analysis. FTC
concedes that the aircraft it tendered did not conform to
the specifications laid out in the parties’ contract. But
it asserts that those specifications were included by mutual
mistake, and that Airborne’s perfect tender defense cannot
withstand reformation of the contract to reflect the
specifications actually intended by both parties. In short,
FTC argues that the court could not have disposed of the
case on the ground that FTC tendered a non-conforming good
without first deciding which good the parties actually
intended for FTC to tender.

     “Under New York law, which governs by reason of the
choice of law clause[] in the [parties’ contract], ‘[t]he
fundamental . . . precept of contract interpretation is that
agreements are [to be] construed in accord with the parties’
intent.’” In re Delta Air Lines, Inc., 608 F.3d 139, 146
(2d Cir. 2010) (third alteration in original) (quoting
Greenfield v. Philles Records, Inc., 780 N.E.2d 166, 170
(N.Y. 2002)). Airborne opposed FTC’s request to reform the
contract to reflect the parties’ intent in the district
court, but it has not contested FTC’s assertion that the
court should have considered that request before
adjudicating the perfect tender defense. In view of this
lack of opposition and the resulting lack of briefing on the
relevant points of New York law, we conclude that the
prudent course is to VACATE the judgment in Airborne’s favor
and REMAND the case with instructions that the district
court consider anew FTC’s motion to reform the contract to
reflect the parties’ intent before addressing Airborne’s
perfect tender defense.

                  FOR THE COURT:
                  Catherine O’Hagan Wolfe, Clerk of Court




expressly in his pleading as long as the issue of mutual
mistake is raised by the pleading.”).

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