Triodetic Inc. v. Statue of Liberty IV, LLC

13-4460-cv
Triodetic Inc. v. Statue of Liberty IV, LLC

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 3rd
day of November, two thousand fourteen.

PRESENT: JOHN M. WALKER, JR.,
JOSÉ A. CABRANES,
SUSAN L. CARNEY,
Circuit Judges.

TRIODETIC INC.,

Plaintiff-Appellant,

v. No. 13-4460-cv

STATUE OF LIBERTY IV, LLC, STATUE CRUISES, LLC,
M/V HORNBLOWER HYBRID, in rem,

Defendants-Appellees.

FOR PLAINTIFF-APPELLANT: RAYMOND A. CONNELL, New York, NY
(Brian Keane, Kaplan/Bond Group, Boston,
MA, on the brief).

FOR DEFENDANTS-APPELLEES: KENNETH L. LEIBY, JR., Shackleton &
Hazeltine, Millburn, NJ (Dean W. Baker,
Bohonnon Law Firm, New Haven, CT, on the
brief).
 Appeal from a judgment of the United States District Court for the Southern District of
New York (Katherine B. Forrest, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Plaintiff-appellant Triodetic Inc. appeals from the District Court’s November 7, 2013 entry
of summary judgment in favor of defendants on plaintiff’s claims for a maritime lien, unjust
enrichment, and conversion. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

We review a grant of summary judgment de novo, viewing the facts “in the light most
favorable to the non-moving party and draw[ing] all reasonable inferences in that party’s favor.” Cox
v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 271 (2d Cir. 2011). Summary judgment is appropriate
where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Upon de novo review of the record and relevant law, we conclude that the District Court
properly granted summary judgment in favor of defendants on plaintiff’s claim for a maritime lien.
Plaintiff expressly agreed that no maritime lien could be deployed with respect to its purchase order
with contractor Derecktor Shipyard Conn. LLC (“Derecktor”). The purchase order expressly
provides that:

The parties agree that no lien or other in rem proceeding may attach
or otherwise affect title to the Vessel for which the items are being
utilized or any other vessel or property owned by the Authority in
connection with any dispute or claim arising under or in connection
with this [purchase order].

The phrase “Vessel for which the items are being utilized” plainly refers to the vessel M/V
Hornblower Hybrid, for which plaintiff was subcontracted to construct and install an atrium.

The District Court also properly granted summary judgment in favor of defendants on
plaintiff’s unjust enrichment claim. There is no evidence in the record that defendants expressly
consented to undertake Derecktor’s payment obligations to plaintiff after it became apparent that
Derecktor would be unable to pay, nor do the circumstances surrounding the parties’ dealings give
rise to an obligation to pay. See Perma Pave Contracting Corp. v. Paerdegat Boat & Racquet Club, Inc., 549
N.Y.S.2d 57, 59 (2d Dep’t 1989) (“[I]t is a firmly established principle that a property owner who
contracts with a general contractor does not become liable to a subcontractor on a quasi-contract

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theory unless it expressly consents to pay for the subcontractor’s performance.”) (rejecting plaintiff’s
unjust enrichment claim); U.S. E. Telecommunications, Inc. v. US W. Commc’ns Servs., Inc., 38 F.3d 1289,
1298 (2d Cir. 1994) (“[U]nder New York law, a subcontractor may recover from a landowner (and a
sub-subcontractor from a general contractor), even when a separate contract exists between the
subcontractor and general contractor, if the owner has agreed to pay the general contractor’s debt or
if the circumstances surrounding the parties' dealings can be found to have given rise to an
obligation to pay.”).1 Accordingly, “equity and good conscience” do not require defendants, who
have no contractual relationship with the subcontractor plaintiff, to pay restitution. Golden Pac.
Bancorp. v. F.D.I.C., 375 F.3d 196, 203 n.8. (2d Cir. 2004).

Finally, the District Court properly granted summary judgment in favor of defendants on
plaintiff’s conversion claim. Although the District Court did not address whether the bills of lading
were non-negotiable, and apparently overlooked the fact that some of the bills of lading did not list
Derecktor as consignee, plaintiff never raised these arguments in its opposition to defendants’
motion for summary judgment. Accordingly, these arguments were waived. See Palmieri v. Lynch, 392
F.3d 73, 87 (2d Cir. 2004).

CONCLUSION

We have considered all of the arguments raised by plaintiff on appeal and find them to be
without merit. For the reasons stated above, we AFFIRM the District Court’s November 7, 2013
judgment.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

1 Although plaintiff claims in an affidavit that Derecktor “informed” it that defendants would make future

payments, there is no evidence that defendants consented to pay for plaintiff’s performance. Indeed, plaintiff states that
defendants said only that they were “committed” to completing the project, and that payment was still “to be discussed.”
Joint App’x 129. Compare U.S. E. Telecommunications, Inc., 38 F.3d at 1299 (finding quasi-contract liability in light of
defendant’s promise to plaintiff that it would “get paid”).

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