1

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,

on the 18th 4 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
2

1 FOR APPELLANT: Michael Quinn Carey, Carey &

2 Associates LLC, New York, New

3 York.

4

5 FOR APPELLEE AMERICAN

6 CAPITAL STRATEGIES,

7 LTD.:

8

9

10 FOR APPELLEES

11 PROVIDENCE INVESTMENT

12 MANAGEMENT, L.L.C.;

13 PROVIDENCE INVESTMENT

14 PARTNERS, L.L.C.; and

15 RUSSELL JEFFREY:

Stewart D. Aaron, (Erik C.

Walsh, on the brief), Arnold &

Porter, LLP, New York, New York.

Neil H. Klausner, (David S.

Greenberg, Davis & Gilbert LLP,

New York, New York; Gerald C.

Maria, John F. Kelleher,

Higgins, Cavanaugh & Cooney,

LLP, Providence, Rhode Island on

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
3

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
4

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 time17 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.

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25

26 FOR THE COURT:

27 CATHERINE O’HAGAN WOLFE, CLERK

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