Argument About Course Of Performance Defeats Motion For Summary Judgment In Lieu Of Complaint

Posted: June 20, 2025 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Summary Judgment

Argument About Course Of Performance Defeats Motion For Summary Judgment In Lieu Of Complaint

On May 22, 2025, Justice Joel M. Cohen denied plaintiff’s motion for summary judgment in lieu of complaint in FG International Group Inc. v. FIDIA Capital, LLC et ano., Index No. 650073/2025. Although plaintiff had made a prima facie case, defendants raised disputed issue of fact as to whether they had defaulted. The Court explained:

[Defendants] argue that, notwithstanding the directive in the Note that interest payments shall be paid directly to the noteholder (NYSCEF 6 at pp. 4, § 3), the parties’ course of performance was that Defendants would send interest payments to Arengi’s former attorney, Enrico Tabellini, who would then transfer the funds to Plaintiff or its principal (NYSCEF 17 [Ghoulam Deposition Transcript] at 54:5-55:11). Defendants assert that Mr. Tabellini was holding $14,000,000.00 of Defendants’ funds to be used for loan payments to Plaintiff, but Plaintiff instructed Tabellini not to allow Defendants to use these funds for interest payments (NYSCEF 26 [Arengi Aff.] ¶¶ 27-29). In Arengi’s view, this was a conspiracy “to harm me financially and personally by stealing Fidia’s $14 million[,] but still seeking full payment on the Loans” (id. ¶ 34). Though Arengi does not expressly argue in connection with this motion that Tabellini is acting as Plaintiff’s agent, Arengi does so in the contemporaneously filed related action before this Court, Ghoulam et al. v Bentivoglio et al., Index Number 650061/2025 (see generally NYSCEF 79 in Index Number 650061/2025 [Arengi’s Memorandum of Law in Opposition to Plaintiff’s Motion for Interim Relief]).

In both actions, Defendants support their theory by pointing to provisions in the pledge agreements executed in connection with the various loans, which list Tabellini and Plaintiff’s manager, Pierrick Reynard, as the recipient of notice on behalf of the lender (NYSCEF 19-21 § 7). Whether the theory is that Defendants did not default because they paid Tabellini in his capacity as Plaintiff’s agent, or that Plaintiff is otherwise acting in bad faith to avoid receiving payment, there is a factual dispute that cannot be resolved summarily on the present record.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning summary judgment in lieu of complaint.