Slip Op. 07- 76

UNITED STATES COURT OF INTERNATIONAL TRADE

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 :

The Resource Club, Ltd., :

 : 

Plaintiff, :

 :

 v. : Before: Pogue, Judge

 : Court No. 03-00781

United States, :

 :

Defendant. :

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OPINION

[Plaintiff’s motion for summary judgment denied; Defendant’s crossmotion for summary judgment granted.]

Dated: May 16, 2007

Follick & Bessich(John A. Bessich, Suzanne Liberti) for the

Plaintiff.

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson,

Director, Patricia M. McCarthy, Assistant Director, Commercial

Litigation Branch, Civil Division, U.S. Department of Justice

Barbara S. Williams, Attorney in Charge, International Trade Field

Office;(Amy M. Rubin, Trial Attorney), Su-Jin Yoo, Bureau of

Customs and Border Protection, U.S. Department of Homeland

Security, Of counsel, for the Defendant.

Pogue, Judge: Plaintiff, Resource Club, Inc., (“Resource

Club”) challenges the United States Customs and Border Protection

(“Customs”) decision to assess, collect and retain duties and fees

paid on imported merchandise. Relying on the statutory provision

for abandonment of goods, Section 563(b) of the Tariff Act of 1930,
Court No. 03-00781 Page 2

All references to the United States Code (“U.S.C.”) are to the 1

2000 edition. 

19 U.S.C. § 1563(b), Resource Club contends that Customs 1

improperly denied a refund of duties after Resource Club abandoned

the subject merchandise to Customs. Resource Club’s claim, stated

in its December 4, 2000 protest, followed the September 8, 2000

liquidation of its entries. Plaintiff’s Complaint (“Compl.") 3.

Customs’ May 2, 2003, denial of Resource Club’s protest is the

agency action under review in this case. Before the Court are the

parties’ cross-motions for summary judgment on Resource Club’s

claim. For the reasons explained below, Plaintiff’s motion for

summary judgment is denied and Defendant’s cross-motion for summary

judgment is granted.

Jurisdiction and Standard of Review

This court’s jurisdiction to hear the Plaintiff’s challenge

lies under 28 U.S.C. § 1581(a)(“[t]he Court of International Trade

shall have exclusive jurisdiction of any civil action commenced to

contest the denial of a protest . . . .”). In an action under

§ 1581(a), the Court reviews the matter de novo. 28 U.S.C.

§ 2640(a)(1). See Rheem Metalurgica S/A v. United States, 20 CIT

1450, 1456, 951 F.Supp. 241, 246 (1996), aff'd 160 F.3d 1357 (Fed.

Cir. 1998). Applying a de novo standard of review, the court

examines the court record to reach the correct conclusion. Id. 

Summary judgment is appropriate “if the pleadings,
Court No. 03-00781 Page 3

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” USCIT R. 56(c); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

Summary of Facts

The following facts are uncontested. Plantiff Resource Club

is the importer of record of 1,683 dozen ladies’ jeans, Entry No.

066-1132964-7, Pl.’s Statement of Material Facts Not in Dispute 2

(“Pl.’s R. 56 Statement”), and has paid all the related duties and

fees associated with this entry. Id. Upon importation, on or

about September 1999, a Customs national field import specialist

detained the shipment pending the verification of authenticity of

the shipment’s Cambodian visa. Id. Resource Club protested this

detention of the entry. Following the denial of Resource Club’s

protest, Customs notified Plaintiff, on May 19, 2000, that the

Cambodian visa was not genuine and that the shipment had been

seized as being imported contrary to law. Resource Club then

petitioned for relief from Customs’ seizure. Id. at 3. 

Although it denied Resource Club’s petition for relief,

Customs also issued a decision letter, dated September 7, 2000,

authorizing remission of the merchandise for “Export Only”, upon

payment of all storage charges and $14,137.00, representing 10
Court No. 03-00781 Page 4

 The Government denies the accuracy of Resource Club’s 2

representation of the relief granted, adding that the relief was

conditioned upon payment of the above stated fine, “payment of

all accrued storage charges, the exportation under Customs’

supervision of all of the seized merchandise and the execution

of a hold harmless agreement.” Def.’s Resp. Pl.’s Statement

Material Facts as to which there are no Genuine Issues to be

Tried 3 (“Def.’s R. 56 Resp.”). The court finds this factual

dispute immaterial to its resolution of the controversy.

 The Government admits that Plaintiff provided an Election of 3

Proceedings form but denies the accuracy of Resource Club’s

representation of its letter to Customs. The government avers

that Resource Club conditioned its withdrawal of the petitions

upon the refund of all customs duties and fees. Def.’s R. 56

Resp. 2. The court finds this factual dispute immaterial to its

resolution of the controversy. 

percent of the foreign dutiable value. Pl.’s R. 56 Statement 3.

Customs’ offer of relief was to expire if Resource Club failed to

respond within 30 days. Plaintiff’s Exhibit (“Pl.’s Ex.”) G. On 2

September 8, 2000, the entry was liquidated. Pl.’s R. 56 Statement

3. 

Resource Club filed a supplemental petition for further relief

on November 3, 2000. Pl.’s R. 56 Statement 3. On December 4,

2000, Resource Club notified Customs that it was “formally

withdrawing its petition and supplemental petition, and abandoning

the subject goods to Customs” and provided Customs with an executed

“Election of Proceedings form”. Id. On the same day, Resource 3

Club filed the protest at issue in this action, number 1001-00-

105159, contesting the assessment, collection, and retention of

duties. Id. at 1. 

Customs proceeded with forfeiture proceedings of the

merchandise in February of 2001, and in April, the government
Court No. 03-00781 Page 5

 Pursuant to this statutory authority, the Secretary of the 4

Treasury promulgated regulations governing the importer’s

exercise of this allowance. The relevant section, 19 C.F.R. §

158.43(a)-(b) reads:

Allowance in duties for merchandise entered under bond

destroyed under section 557(c), Tariff Act of 1930, as

(continued...)

contractor, EG&G services, who was the custodian of the goods

during the seizure, sold the merchandise for exportation. Def.’s

Statement of Additional Material Facts as to which there are no

Genuine Issues to be Tried 4 (“Def.’s Add’l. R. 56 Statement.”).

On May 2, 2003, Customs denied Plaintiff’s December 4, 2000

protest. Pl.’s R. 56 Statement 3. Resource Club contends that

Customs improperly denied its protest in light of its abandonment

of the subject merchandise pursuant to 19 U.S.C. § 1563(b).

Discussion

A. Statutory and Regulatory Framework

Resource Club argues for a full refund of duties and fees

paid, citing 19 U.S.C. § 1563(b), which, in relevant part states:

[u]nder such regulations as the Secretary of the

Treasury may prescribe and subject to any conditions

imposed thereby the consignee may at any time within

three years from the date of original importation,

abandon to the Government any merchandise in bonded

warehouse, whereupon any duties on such merchandise may

be remitted or refunded as the case may be, but any

merchandise so abandoned shall not be less than an

entire package and shall be abandoned in the original

package without having been repacked while in a bonded

warehouse (other than a bonded manipulating warehouse).

19 U.S.C. § 1563(b). Reading 19 U.S.C. § 1563(b) literally, 4
Court No. 03-00781 Page 6

(...continued)

amended (19 U.S.C. 1557(c)), or for merchandise in bonded

warehouse abandoned to the Government under section

563(b), Tariff Act of 1930, as amended (19 U.S.C.

1563(b)), shall be subject to the following conditions:

(a) Application by importer. The importer shall file an

application for abandonment or destruction of

merchandise in bond with the port director on Customs

From [sic] 3499, with the title modified to read

"Application and Permit to Abandon (or Destroy) Goods

in Bond." When an application is for permission to

destroy, the proposed method of destruction shall be

stated in the application and be subject to the

approval of the port director.

(b) Concurrence of warehouse proprietor. An application

to abandon or destroy warehoused merchandise shall not

be approved unless concurred in by the warehouse

proprietor.

19 C.F.R. § 158.43(a)-(b). All references to the Code of

Federal Regulations are to the 2002 edition.

 The statute authorizing the Secretary of Treasury to establish 5

such warehouses is 19 U.S.C. § 1555(a), which reads: 

[d]esignation; preconditions; bonding requirements,

supervision. Subject to subsection (b) of this

section, buildings or parts of buildings and other

enclosures may be designated by the Secretary of the

Treasury as bonded warehouses for the storage of

imported merchandise entered for warehousing, or taken

possession of by the appropriate customs officer, or

under seizure, or for the manufacture of merchandise

in bond, or for the repacking, sorting, or cleaning of

imported merchandise . . . . Before any imported

merchandise not finally released from customs custody

shall be stored in any such premises, the owner or

lessee thereof shall give a bond in such sum and with

(continued...)

Customs responds that Resource Club’s goods were not stored in a

“bonded warehouse” and therefore were not eligible for abandonment

in the first place. Def.’s Mem. Supp. Cross-Mot. Summ. J. & Opp’n

Pl.’s Mot. Summ. J. 5 (“Def.’s Mem.”). Customs also draws 5
Court No. 03-00781 Page 7

(...continued)

such sureties as may be approved by the Secretary of

the Treasury to secure the Government against any loss

or expense connected with or arising from the deposit,

storage, or manipulation of merchandise in such

warehouse. . . .

19 U.S.C. § 1555(a).

 This section provides: 6

[i]f the importation or entry of the merchandise is

subject to quantitative restrictions requiring a visa,

permit, license, or other similar document, or stamp

from the United States Government or from a foreign

government or issuing authority pursuant to a

bilateral or multilateral agreement, the merchandise

shall be subject to detention in accordance with

section 1499 of this title unless the appropriate

visa, license, permit, or similar document or stamp is

presented to the Customs Service; but if the visa,

permit, license, or similar document or stamp which is

presented in connection with the importation or entry

of the merchandise is counterfeit, the merchandise may

be seized and forfeited. 

 A summary forfeiture administered by Customs has the following 7

effect under 19 U.S.C. § 1609(b):

Effect. A declaration of forfeiture under this

section shall have the same force and effect as a

final decree and order of forfeiture in a judicial

forfeiture proceeding in a district court of the

United States. Title shall be deemed to vest in the

United States free and clear of any liens or

(continued...)

support for its position from the Tariff Act’s “Enforcement

Provisions”. Customs notes that Resource Club’s goods were seized

as a result of Customs’ finding that the entry visa for the

importation was counterfeit, pursuant to 19 U.S.C. § 1595a(c)(3);6

such a finding authorizes Customs to seize and forfeit the

merchandise. In addition, Congress charged Customs with storing 7
Court No. 03-00781 Page 8

(...continued)

encumbrances (except for first preferred ship

mortgages pursuant to section 961 of Title 46,

Appendix, or any corresponding revision,

consolidation, and enactment of such subsection in

Title 46) from the date of the act for which the

forfeiture was incurred. Officials of the various

States, insular possessions, territories, and

commonwealths of the United States shall, upon

application of the appropriate customs officer

accompanied by a certified copy of the declaration of

forfeiture, remove any recorded liens or encumbrances

which apply to such property and issue or reissue the

necessary certificates of title, registration

certificates, or similar documents to the United

States or to any transferee of the United States.

19 U.S.C. § 1609(b). 

 That regulation provides: 8

(a) To whom addressed. Petitions for the remission or

mitigation of a fine, penalty, or forfeiture incurred

(continued...)

seized goods, pending their disposition, in accordance with 19

U.S.C. § 1605, which, in relevant part reads:

[p]ending such disposition, the property shall be

stored in such place as, in the customs officer's

opinion, is most convenient and appropriate with due

regard to the expense involved, whether or not the

place of storage is within the judicial district or the

customs collection district in which the property was

seized . . . . 

19 U.S.C. § 1605.

 Citing the above statutory provisions, Customs claims that it

seized Resource Club’s goods and stored them as required by law.

Def.’s Mem. 9-10. Additionally, however, in response to Customs’

May 19, 2000 notice which alerted Resource Club that its visa was

counterfeit, Resource Club filed a petition for relief from the

seizure, pursuant to 19 C.F.R. § 171.1. Customs replied on 8
Court No. 03-00781 Page 9

(...continued)

under any law administered by Customs must be

addressed to the Fines, Penalties, and Forfeitures

Officer designated in the notice of claim.

(b) Signature. For commercial violations, the petition

for remission or mitigation must be signed by the

petitioner, his attorney-at-law or a Customs broker.

If the petitioner is a corporation, the petition may

be signed by an officer or responsible supervisory

official of the corporation, or a responsible employee

representative of the corporation. Electronic

signatures are acceptable. In non-commercial

violations, a non-English speaking petitioner or

petitioner who has a disability which may impede his

ability to file a petition may enlist a family member

or other representative to file a petition on his

behalf. The deciding Customs officer may, in his or

her discretion, require proof of representation before

consideration of any petition.

(c) Form. The petition for remission or mitigation

need not be in any particular form. Customs can

require that the petition and any documents submitted

in support of the petition be in English or be

accompanied by an English translation. The petition

must set forth the following:

(1) A description of the property involved (if a

seizure);

(2) The date and place of the violation or seizure;

(3) The facts and circumstances relied upon by the

petitioner to justify remission or mitigation; and

(4) If a seizure case, proof of a petitionable

interest in the seized property.

(d) False statement in petition. A false statement

contained in a petition may subject the petitioner to

prosecution under the provisions of 18 U.S.C. 1001.

19 C.F.R. § 171.1.

September 7, 2000, offering relief, and prescribed a limited time

of 30 days within which Resource Club was to respond. Pl.’s Ex. G.
Court No. 03-00781 Page 10

 19 C.F.R. § 171.22 provides: 9 

[a]decision to mitigate a penalty or to remit a

forfeiture upon condition that a stated amount is paid

will be effective for not more than 60 days from the

date of notice to the petitioner of such decision

unless the decision itself prescribes a different

effective period. If payment of the stated amount or

arrangements for such payment are not made, or a

supplemental petition is not filed in accordance with

regulation, the full penalty or claim for forfeiture

will be deemed applicable and will be enforced by

promptly referring the matter, after required

collection action, if appropriate, to the appropriate

Office of the Chief Counsel for preparation for

referral to the Department of Justice unless other

action has been directed by the Commissioner of

Customs.

19 C.F.R. § 171.22.

The 30-day deadline is authorized by 19 C.F.R. § 171.22. 

9

It is against this legal framework that Resource Club

maintains that Customs unlawfully denied its petition protesting

the imposition, collection, and retention of duties and fees.

B. Resource Club’s Errors

It is significant that this case arises as a result of

Customs’ finding that Resource Club presented a counterfeit visa

for the entry of the subject merchandise. Resource Club does not

contest this finding or challenge the lawfulness of the attendant

seizure. However, Resource Club asserts that it exercised its

right to abandonment within the three-year period permitted by

19 U.S.C. § 1563(b), and therefore Customs should refund the duties

that Resource Club paid upon entry. Considered in light of the

legal framework outlined above, Resource Club’s argument is
Court No. 03-00781 Page 11

unpersuasive. 

As noted above, in its reply to Plaintiff’s May 9th petition,

Customs offered relief and prescribed a time of 30 days within

which Resource Club was to respond. Pl.’s Ex. G. When Resource

Club failed to respond by October 9, 2000, Customs initiated

forfeiture proceedings. The next correspondence from Resource Club

came in the form of a supplemental petition for relief filed on

November 3, 2000, almost 60 days after the September 7th Customs

letter. By the plain language of 19 C.F.R. § 171.22, the decision

to mitigate the penalty expired after 60 days unless the decision

itself described a different effective period. In this case, by

the terms of Custom’s September 7, 2000 letter, there was a 30-day

mitigation period. Once that expired, Customs could lawfully

initiate the administrative forfeiture proceedings. These

forfeiture proceedings did not involve placing Resource Club’s

goods in a bonded warehouse; therefore, 19 U.S.C. § 1563(b), by its

own terms, did not apply to Resource Club’s goods.

Moreover, and apart from the lawfulness of Customs’ forfeiture

and sale, Resource Club’s exercise of the abandonment provision

suffers from fatal procedural errors. Plaintiff failed to meet two

explicit conditions for abandonment, both stated in Customs’

implementing regulations for 19 U.S.C. § 1563(b). Specifically,

Resource Club failed to file Customs Form 3499 and failed to
Court No. 03-00781 Page 12

See supra, note 6. 10

produce evidence of the warehouse proprietor’s concurrence.

19 C.F.R. § 158.43. 

Because the statute’s plain language subjects the exercise of

abandonment to the Secretary’s regulatory discretion, regulations

promulgated pursuant to this authority have the force of law and

are binding on this Court, unless they are “procedurally defective,

arbitrary or capricious in substance, or manifestly contrary to the

statute.” United States v. Mead Corp., 533 U.S. 218, 227 (2001) 

(internal citations omitted). Resource Club does not challenge the

validity of the regulations and no inferences drawn from the record

in Resource Club’s favor suggest that Plaintiff should be excepted

from the regulation’s requirements. Therefore, Customs’ denial of

the Plaintiff’s protest is correct as a matter of law.

C. Customs has no obligation to store seized goods in a bonded

warehouse. 

Plaintiff also argues that because its goods were in Customs’

custody when they were putatively abandoned, the “bonded warehouse”

limitation is inapplicable, thereby entitling Resource Club to a

full refund of duties and fees. Pl.’s Affirmation Opp’n Def.’s

Cross-Mot. Summ. J. 3 (“Pl.’s Opp’n Mem.”). The problem with this

contention however, is that it ignores the legal status of the

goods in question; the goods were seized by Customs due to their

importation contrary to 19 U.S.C. § 1595a(c). Specifically, 10
Court No. 03-00781 Page 13

Customs was acting pursuant to its enforcement authority under the

Tariff Act, and that authority is independent of the abandonment

statute, 19 U.S.C. § 1563(b), which appears in the “Transportation

in Bond and Warehousing of Merchandise.” Because Congress

carefully outlined Customs’ enforcement powers in a separate

statutory provision, and excluded such powers from other sections,

by negative inference, the separate provision for abandonment,

which is not included in the statutory provision for seizure,

cannot be read to impose additional conditions on the exercise of

enforcement authority. See Hamdan v. Rumsfeld, __ U.S. __, 126 S.

Ct. 2749, 2765 (2006)(“A familiar principle of statutory

construction . . . is that a negative inference may be drawn from

the exclusion of language from one statutory provision that is

included in other provisions of the same statute.”(citations

omitted)). In addition, adopting Plaintiff’s position would

contradict another fundamental principle of statutory

interpretation by rendering superfluous the broad delegation of

discretion to a Customs officer in deciding what is a “convenient

and appropriate” place to store seized goods under 19 U.S.C.

§ 1605, excerpted supra, p. 8. See TRW Inc. v. Andrews, 534 U.S.

19, 31 (2001) (“It is ‘a cardinal principle of statutory

construction’ that ‘a statute ought, upon the whole, to be so

construed that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void, or insignificant.’”(quoting Duncan

v. Walker, 533 U.S. 167, 174 (2001))). Therefore, the bonded
Court No. 03-00781 Page 14

warehouse provision does not have any bearing on the treatment of

goods, stored elsewhere, prior to enforcement proceedings, or to

the duties and fees paid upon importation of seized goods. 

In United States v. One Case Paintings, 99 F. 426 (2d. Cir.

1900), the Court rejected a similar argument from a Plaintiff who

wished to obtain a refund of duties by abandoning goods that had

been forfeited and sold as a penalty for undervaluation. The Court

held:

“[i]mportation” and “fraudulent undervaluation” are

two distinct acts. The doing of the one act makes the

importer a debtor to the government for the amount of

duties, the doing of the other act makes him lose his

goods; but there is nothing in the language of section

32 which can be construed as a remission of the

obligation to pay duties in any event. 

Id. at 428. Similarly, importation of Resource Club’s ladies’

jeans and payment of the concomitant duties are distinct from the

presentation of a counterfeit visa and the penalties arising

therefrom. Nothing in 19 U.S.C. § 1595a(c)(3), the provision

allowing for forfeiture of goods associated with a counterfeit

visa, suggests either an obligation to store goods in a bonded

warehouse or a remission of Resource Club’s obligation to pay

duties. 

The proposition that Customs is not obliged to store seized

goods in a bonded warehouse for the benefit of an importer is

bolstered by the statutory provision for designating “bonded

warehouses” and the legislative purpose such warehouses serve.
Court No. 03-00781 Page 15

 See Pl.’s Opp’n Mem. 3. (“[The requirement that] goods be in 11

a bonded warehouse at the time of abandonment, only applies to

situations where the goods are abandoned while in custody and

control of the importer. This requirement exists due to the fact

that an importer must store imported goods in a bonded warehouse

until the goods clear Customs.”)

Section 1555 of 19 U.S.C. provides in part:

buildings or parts of buildings and other enclosures

may be designated by the Secretary of the Treasury as

bonded warehouses for the storage of imported

merchandise entered for warehousing, or taken

possession of by the appropriate customs officer, or

under seizure, or for the manufacture of merchandise in

bond, or for the repacking, sorting, or cleaning of

imported merchandise. . . . Before any imported

merchandise not finally released from customs custody

shall be stored in any such premises, the owner or

lessee thereof shall give a bond in such sum and with

such sureties as may be approved by the Secretary of

the Treasury to secure the Government against any loss

or expense connected with or arising from the deposit,

storage, or manipulation of merchandise in such

warehouse.

19 U.S.C. § 1555(a) (emphasis added). It is apparent from this

language that bonded warehouses are not intended to protect the

importer, as Resource Club suggests, but rather to provide 11

security to the Government. The intent to secure the government and

not the importer is echoed by the very regulation that Plaintiff

relies on. Subsection (c)(1) of the abandonment regulation states:

Costs. When in the opinion of the port director the

abandonment of merchandise under section 563(b), Tariff

Act of 1930, as amended (19 U.S.C. 1563(b)), will

involve any expense or cost to the Government, or if

the merchandise is worthless or unsalable, or cannot be

sold for a sum sufficient to pay the expenses of sale,

such abandonment shall not be permitted unless the

importer deposits a sum which in the opinion of the

port director will be sufficient to save the Government

harmless from any expense or cost resulting from such

abandonment. 
Court No. 03-00781 Page 16

 Pl.’s Opp’n Mem. at 3. 12

19 C.F.R. § 158.43(c)(1)(emphasis added). 

Considered in light of the permissive language of 19 U.S.C.

§ 1555, it is well within the Secretary’s authority to determine

and designate the bonded warehouses that will sufficiently secure

the government against loss or expense. 

In addition, 19 U.S.C. § 1605 gives Customs broad discretion

to store the goods in a site that is “convenient and appropriate”

with “due regard” for the expenses involved. The fact that Customs

chose an unbonded warehouse to store the seized goods is in no way

contrary to law. In other words, Customs is not under any

obligation to store the goods in a bonded warehouse during a

seizure. Therefore, Resource Club’s argument that, “[i]t is

patently unfair and unjust to allow Customs to deny the Plaintiff’s

right of abandonment and duty refund, based on the fact that

Customs decided to store the goods in a non-bonded warehouse,”12

must fail.

While it is not necessary to decide whether there is a

statutory “right of abandonment” as the Plaintiff contends, it is

certainly not the case that an importer whose goods have been

seized for a suspected violation of U.S. Customs law may preserve

such a “right” by asserting a governmental obligation to store its

goods in a bonded warehouse pending their disposition. 

Finally, we note that by holding that an importer is entitled
Court No. 03-00781

to a refund of all duties and fees, simply by abandoning his goods

to Customs after being notified of possible fraud, the Court would

create a significant moral hazard. Importers could systematically

skirt Customs’ entry laws because counterfeit visas and other

falsified information would carry no risk of loss or penalties. The

law does not require such a result.

CONCLUSION

For the foregoing reasons, the court denies Plaintiff’s

motion for summary judgment and grants Defendant’s cross-motion

for summary judgment. 

IT IS SO ORDERED.

/s/ Donald C. Pogue 

Donald C. Pogue, Judge 

Dated: May 16, 2007

New York, New York
Slip Op. 07-76

UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - -x

 :

The Resource Club, Ltd., :

 : 

 Plaintiff, :

 :

 v. : Before: Pogue, Judge

 : Court No. 03-00781

United States, :

 :

 Defendant. :

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JUDGMENT

Upon consideration of Plaintiff’s complaint, the parties’

cross-motions for summary judgment, and all other pertinent

papers, and after due deliberation, it is hereby

ORDERED that Plaintiff’s motion is denied; and further

ORDERED that Defendant’s motion be granted; and further

ORDERED that this action is dismissed. 

/s/ Donald C. Pogue 

 Donald C. Pogue, Judge

Dated: May 16 , 2007

New York, New York