At page 381 Establishing genuine issues for summary judgment52 citing cases“totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence.”
- Document Sec. Sys., Inc. v. Coupons.com, Inc., 55 F. Supp. 3d 485 (W.D.N.Y. 2014).published([I]n order to defeat a motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue for trial. Such an issue is not created by a mere allegation in the pleadings,…)
- Flowers v. Hartford Life & Accident Ins. Co., No. 1:21-cv-05388 (S.D.N.Y. Aug. 31, 2023).(unsupported assertions” insufficient to withstand summary judgment)
- Safeco Ins. Co. v. M.E.S., Inc., 790 F. App'x 289 (2d Cir. 2019).unpublishedCo., 2018 WL 2766139 , at *15, *22, we do not conclude that MES’s appeal “is totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence.” United States v. Potamkin Cadill…
- Galin v. Hamada, No. 17-2988 (2d Cir. Oct. 4, 2018).unpublishedSuch sanctions are appropriate when a party advances an argument that is “totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence.” United States v. Potamkin Cadillac…
- RSUI Indem. Co. v. RCG Grp. (USA), 890 F. Supp. 2d 315 (S.D.N.Y. 2012).published“Such an issue is not created ... by surmise or conjecture on the part of the litigants.” United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982) (internal citations omitted).
- Erchonia Corp. v. Bissoon, 421 F. App'x 122 (2d Cir. 2011).unpublishedWe *123 have held that sanctions under Federal Rule of Appellate Procedure 38 may be imposed when one party proceeds with an argument “ ‘totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly un…
- DeFabio v. East Hampton Union Free Sch. Dist., 623 F.3d 71 (2d Cir. 2010).published“Such an issue is not created by a mere allegation in the pleadings, nor by surmise or conjecture on the part of the litigants.” United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982) (internal citations omitted).
- United States v. Bonilla, 618 F.3d 102 (2d Cir. 2010).published(imposing sanctions upon appellant and counsel for frivolous appeal)
- United States v. Davis, 598 F.3d 10 (2d Cir. 2010).publishedCf. United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982) (per curiam) (concluding that appeal was “frivolous” where it “amount[ed] to little more than a continued abuse of process” and “[was] totally lacking in merit,…
- T. CO METALS, LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d 329 (2d Cir. 2010).publishedAnticipating that this Court would reject T.Co’s allegations of manifest disregard with respect to the award of diminution-in-value damages, Dempsey filed a motion (“Fees Motion”) on June 3, 2009, arguing that T.Co’s appeal of its manifest…
Show 38 more citing cases
- Ansoumana v. Gristedes Operating Corp., 227 F. App'x 108 (2d Cir. 2007).unpublished“Sanctions may be imposed when one party proceeds with an argument ‘totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence.’ ” In re Drexel Burnham Lambert Group, Inc…
- Rizzo v. Edison, Inc., 172 F. App'x 391 (2d Cir. 2006).unpublishedSuch an issue is not created by a mere allegation in the pleadings ... nor by surmise or conjecture on the part of the litigants[.]” United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982) (per curiam) (internal quotation…
- Schweitzer Aircraft Corp. v. Landstar Ranger, Inc., 114 F. Supp. 2d 199 (W.D.N.Y. 2000).publishedUnited States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982) (per curiam).
- Brown v. Morton, 953 F. Supp. 52 (E.D.N.Y. 1997).publishedInstead, the nonmovant must “bring to the district court’s attention some affirmative indication that his version of relevant events is not fanciful.” U.S. v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982) (per curiam).
- Federico v. Bd. of Educ. of the Pub. Schs., 955 F. Supp. 194 (S.D.N.Y. 1997).published A genuine issue, however, "is not created by a mere allegation in the pleadings ..., nor by surmise or conjecture on the part of the litigants." United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982) (citations omitted).
- United States v. Carlin, 948 F. Supp. 271 (S.D.N.Y. 1996).publishedA *275 genuine issue, however, “is not created by a mere allegation in the pleadings ..., nor by surmise or conjecture on the part of the litigants.” United States v. Potamkin Cadillac Carp., 689 F.2d 379, 381 (2d Cir.1982) (citations omit…
- Mary Moore v. United States of Am., & the United States Soc. Sec. Admin., as an Agency of the United States of Am., 101 F.3d 109 (2d Cir. 1996).unpublishedAs we have previously noted, a genuine issue of material fact is "not created by ... surmise or conjecture on the part of the litigants." United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982) (citation omitted). 11 Moor…
- Dimitropoulos v. Painters Union Dist. Council 9, 893 F. Supp. 297 (S.D.N.Y. 1995).publishedR.Civ.P. 56(e); U.S. v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982).
- Knipe v. Skinner, 999 F.2d 708 (2d Cir. 1993).published See In re Hartford Textile Corp., 659 F.2d 299, 303-06 (2d Cir.1981) (per curiam), cert. denied, 455 U.S. 1018 , 102 S.Ct. 1714 , 72 L.Ed.2d 136 (1982); United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381-82 (2d Cir.1982) (per curi…
- In Re The Drexel Burnham Lambert Grp. Inc., 995 F.2d 1138 (1st Cir. 1993).publishedSanctions may be imposed when one party proceeds with an argument "totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence." United States v. Potamkin Cadillac Corp.,…
- Drexel Burnham Lambert Grp. Inc. v. Identified on Schedule 1 (In re Drexel Burnham Lambert Grp. Inc.), 995 F.2d 1138 (2d Cir. 1993).publishedSanctions may be imposed when one party proceeds with an argument “totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence.” United States v. Potamkin Cadillac Corp.,…
- Cummiskey v. Chandris, S.A., 719 F. Supp. 1183 (S.D.N.Y. 1989).publishedUnited States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982).
- Diduck v. Kaszycki & Sons Contractors, Inc., 874 F.2d 912 (2d Cir. 1989).published United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982).
- The Kaw Valley Elec. Coop. Co., Inc. v. Kansas Elec. Power Coop., Inc., & Kansas Elec. Cooperatives, Inc., 872 F.2d 931 (10th Cir. 1989).publishedHowever, ”[R]ule 56(c) of the Federal Rules of Civil Procedure states unequivocally that in order to defeat a motion for summary judgment, the opposing party must ‘set forth specific facts showing that there is a genuine issue for trial.’…
- Muhammad v. McMickens, 708 F. Supp. 607 (S.D.N.Y. 1989).publishedUnited States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982).
- First Fed. Sav. Bank v. Tazzia, 696 F. Supp. 904 (S.D.N.Y. 1988).publishedUnited States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982).
- Kelly v. City of New York, 692 F. Supp. 303 (S.D.N.Y. 1988).publishedUnited States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982).
- Zinck v. ITT Corp., 690 F. Supp. 1331 (S.D.N.Y. 1988).publishedUnited States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir. 1982).
- First City Fed. Sav. Bank v. Bhogaonker, 684 F. Supp. 793 (S.D.N.Y. 1988).publishedUnited States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982).
- Pastrana v. United States, 670 F. Supp. 954 (S.D. Fla. 1987).publishedRegarding the entry of summary judgment, the mere possibility that a factual issue may exist, without more, is not sufficient to overcome a convincing presentation by the moving party.” United States v. Potamkin Cadillac Corporation, 689 F…
- Christian Dior-New York, Inc. v. Koret, Inc., 792 F.2d 34 (2d Cir. 1986).publishedDior likens Koret’s response to that which we found insufficient in United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982), where the claim of a genuine issue of fact was based solely on a general denial in the affidavit…
- Bartel Dental Books Co., Inc. v. Schultz, 786 F.2d 486 (2d Cir. 1986).publishedUnited States v. Potamkin Cadillac Corp., 689 F.2d 379, 381-82 (2d Cir.1982); Muigai v. INS, 682 F.2d 334, 337 (2d Cir.1982); see also 28 U.S.C.
- Bartel Dental Books Co. v. Schultz, 786 F.2d 486 (2d Cir. 1986).publishedUnited States v. Potamkin Cadillac Corp., 689 F.2d 379, 381-82 (2d Cir.1982); Muigai v. INS, 682 F.2d 334, 337 (2d Cir. 1982); see also 28 U.S.C. § 1927 (1982) (“[a]ny attorney ... who so multiplies the proceedings in any case unreasonably…
- Indep. Petrochemical Corp. v. Aetna Cas. & Sur. Co., 654 F. Supp. 1334 (D.D.C. 1986).publishedUnited States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982); accord Exxon Corp. v. Federal Trade Commission, 663 F.2d 120, 126-27 (D.C.Cir. *1354 1980).
- In Re \Agent Orange\" Prod. Liab. Litig.", 611 F. Supp. 1223 (E.D.N.Y. 1985).publishedUnited States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982).
- Orliac v. Winebow, Inc., 595 F. Supp. 470 (S.D.N.Y. 1984).publishedSee Adickes v. Kress & Co., 398 U.S. 144, 159 , 90 S.Ct. 1598, 1609 , 26 L.Ed.2d 142 (1970); United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982).
- In Re Subpoenas to Local 478, Int'l Union of Operating Engineers & Benefit Funds, 708 F.2d 65 (2d Cir. 1983).published United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381-82 (2d Cir.1982) (per curiam); Fed.R.App.P. 38.
- Transp. Limousine of Long Island, Inc. v. Port Auth., 571 F. Supp. 576 (E.D.N.Y. 1983).publishedR.Civ.P. “[T]he mere possibility that a factual dispute may exist, without more, is not sufficient to overcome a convincing presentation by the moving party.” United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir.1982) citing…
- Argus Inc. v. Eastman Kodak Co., 552 F. Supp. 589 (S.D.N.Y. 1982).publishedIn light of defendants’ convincing presentation that no injury was suffered by Argus during the limitations period, plaintiffs are obligated to “ ‘set forth specific facts showing that there is a genuine issue for trial.’ Such an issue is…
- Billy G. Asberry v. United States Postal Serv., 692 F.2d 1378 (Fed. Cir. 1982).published
- Shelcore, Inc., Appellant/cross-Appellee v. Durham Indus., Inc., Appellee/cross-Appellant, 745 F.2d 621 (Fed. Cir. 1984).published
- Carbonic Prods. Co. v. Welding & Cutting Supply Co., a a Wholly-Owned Subsidiary of Union Carbide, 823 F.2d 553 (6th Cir. 1987).unpublished
- Jack Randell v. United States, 64 F.3d 101 (2d Cir. 1995).published
- Creusot-Loire Int'l, Inc. v. Coppus Eng'g Corp., 585 F. Supp. 45 (S.D.N.Y. 1983).published
- Golotrade Shipping & Chartering, Inc. v. Travelers Indem. Co., 706 F. Supp. 214 (S.D.N.Y. 1989).published
- Martin-Trigona v. Brooks & Holtzman, 551 F. Supp. 1378 (S.D.N.Y. 1982).published
- MPC Franchise, LLC v. Tarntino, 19 F. Supp. 3d 456 (W.D.N.Y. 2014).published
- Vatansever v. New York City, 210 F. App'x 26 (2d Cir. 2006).unpublished
At page 382 Imposing sanctions for frivolous appeals7 citing caseswhether attorney or client caused frivolous appeal determines who should bear costs
- Balestriere Fariello v. Gimlet Media, Inc., No. 24-2155 (2d Cir. Oct. 15, 2025).unpublishedGallop v. Cheney, 642 F.3d 364 , 370 n.3 (2d Cir. 2011) (quoting United States v. Potamkin Cadillac Corp., 689 F.2d 379, 382 (2d Cir. 1982)).
- Watkins v. Smith, 561 F. App'x 46 (2d Cir. 2014).unpublishedOn appeal, Plaintiff-Appellant and Appellants have urged us to rule on seventeen questions, not one of which is supported by argumentation that has even “the slightest chance of success.” United States v. Potamkin Cadillac Corp. 689 F.2d 3…
- In Re Jc's East, Inc., Doing Bus. as Lolabelle, Debtor, Jc's East, Inc. v. Susan Traub & Murray Traub, 84 F.3d 527 (2d Cir. 1996).publishedWe therefore order that appellants and their attorney, who are in the best position to allocate responsibility for bringing this appeal, see United States v. Potamkin Cadillac Corp., 689 F.2d 379, 382 (2d Cir.1982), show cause within thirt…
- Healey v. Chelsea Resources Ltd., 133 F.R.D. 449 (S.D.N.Y. 1990).published(whether attorney or client caused frivolous appeal determines who should bear costs)
- Thomas A. Toepfer v. Dep't of Transp., Faa, 792 F.2d 1102 (Fed. Cir. 1986).publishedBowen, 769 F.2d at 754-56; Asberry v. United States Postal Service, 692 F.2d 1378,1382 (Fed.Cir.1982) (joint and several liability with client); accord Reid v. United States, 715 F.2d 1148, 1155 (7th Cir.1983); TIF Instrument, Inc. v. Coll…
- Int'l Union of Bricklayers & Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401 (9th Cir. 1985).published When a frivolous appeal is taken, we have the inherent power to impose sanctions upon the appellant and his counsel "jointly and severally, since attorney and client are in the best position between them to determine who caused [the] appea…
v.
POTAMKIN CADILLAC CORPORATION, Defendant-Appellant
Defendant-appellant Potamkin Cadillac Corporation (“Potamkin”) appeals from a grant of summary judgment entered February 19, 1982 in the United States District Court for the Southern District of New York, 533 F.Supp. 331, (Duffy, Judge) which found Potamkin liable for failing to file a financial report pursuant to an order of the Federal Trade Commission (“FTC”) in violation of 15 U.S.C. § 46(b) (1976) (Section 6 of the Federal Trade Commission Act) and assessed penalties of $100 for each day the report was not filed, 15 U.S.C. § 50 (1976) (Section 10 of the Federal Trade Commission Act), for a total of $39,100. Potamkin requests reversal of Judge Duffy’s order and a remand to the District Court for a full evidentiary hearing, asserting that unresolved issues of fact remain. We find this contention utterly without legal merit. Indeed, we find this appeal frivolous within the meaning of Rule 38, Fed.R. App.P. and we assess jointly and severally against Potamkin and its lawyer, Philip I. Beane, Esquire, double costs and $500 in attorney’s fees in favor of the Government.
The undisputed facts in this case show that Potamkin is a corporation engaged in interstate commerce; that on February 1, 1980 the FTC issued a special order directing Potamkin to file within 10 days of receipt an informational report covering the last quarter of 1979 on an FTC form attached to the order; that on February 11, 1980 the order was served on Potamkin by registered mail and service was acknowledged; that Potamkin did not move to quash or limit the order or to obtain an extension of time for filing; that the FTC issued a notice of default to Potamkin stating that the statutory penalty of $100 per day would start to run on April 12, 1980; that service of the default notice was acknowledged on March 11, 1980; that this action was brought on September 3, 1980; and that by letter of May 8, 1981 Potamkin sent a partial report to government counsel which was deemed an acceptable filing. The report thus was not filed for 391 days after the statutory penalty began running; of that period, approximately 248 days elapsed after the government’s complaint in this case was filed.
Throughout these proceedings, Potamkin has claimed that a timely filing was in fact made and the document was lost by the government; alternatively, that Potamkin was not required to file the report in the first place; that it had filed the report[*381] upon receipt of the complaint; or that “all of the documents used in this matter by the government are not clear and concise, and are not readily understandable or decipherable.” Potamkin’s evidence that the report was filed is an affidavit sworn by its attorney, Philip I. Beane, who concededly lacks personal knowledge, that “[t]o the best of POTAMKIN’s knowledge, the report was filed in a timely fashion.” The supporting proof is best summed up by a letter from Beane to a government attorney which states, “I do not have the specifies of the filing, nor can I tell you which employee filed it. .. . I have no cover sheet nor any other items.... There is nothing else that I can give you on this matter.” On the government’s motion for summary judgment, Judge Duffy properly ruled that Potamkin’s unsupported assertion that it had filed the report did not create a genuine issue of material fact which might preclude summary judgment.
Rule 56(e) of the Federal Rules of Civil Procedure states unequivocally that in order to defeat a motion for summary judgment, the opposing party must “set forth specific facts showing that there is a genuine issue for trial.” Such an issue is not created by a mere allegation in the pleadings, Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970); Korinis v. Sealand Services, Inc., 490 F.Supp. 418, 422 (S.D.N.Y.1980), nor by surmise or conjecture on the part of the litigants, Nemo v. Allen, 466 F.Supp. 192, 195 (S.D.N.Y.1979). As this Court has more recently stated in Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980):
[T]he mere possibility that a factual dispute may exist, without more, is not sufficient to overcome a convincing presentation by the moving party. See Gatling v. Atlantic Richfield Co., 577 F.2d 185, 187-188 (2d Cir. 1978), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 169 (1979). The litigant opposing summary judgment, therefore, ‘may not rest upon mere conclusory allegations or denials’ as a vehicle for obtaining a trial. SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978). Rather, he must bring to the district court’s attention some affirmative indication that his version of relevant events is not fanciful.
That Mr. Beane’s unsupported assertions do not meet this standard must be as obvious to him as it is to us.
Potamkin’s other legal defenses merit only the briefest of comments. FTC authority to require Potamkin to file the report is clearly laid under 15 U.S.C. § 46(b), which provides the Commission with the power to
require, by general or special orders, persons, partnerships, and corporations, engaged in or whose business affects commerce, ... to file with the Commission in such form as the Commission may prescribe annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the Commission such information as it may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective persons, partnerships, and corporations filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the Commission may prescribe, and shall be filed with the Commission within such reasonable period as the Commission may prescribe, unless additional time be granted in any case by the Commission.
Since Potamkin made no effort to clarify matters with the FTC, even after the warning letter, we agree with Judge Duffy that Potamkin’s claim that government information requests were confusing is “almost an insult to our entire legal system.” Memorandum and Order dated February 19, 1982 at 3.
Potamkin’s appeal amounts to “little more than a continued abuse of process” which raises no “colorable legal or factual basis for the relief sought.” Muigai v. INS, 682 F.2d 334 at 337 (2d Cir. 1982). It is totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evi[*382] dence. It was, we believe, “brought without the slightest chance of success,” Bankers Trust Co. v. Publicker Industries, Inc., 641 F.2d 1361, 1367-68 (2d Cir. 1981), an imposition on the government which is forced to defend against the appeal and on the taxpayers who must pay for that defense. Accordingly we assess double costs and $500 in attorney’s fees against Potamkin and its lawyer, Philip I. Beane, jointly and severally, since attorney and client are in the best position between them to determine who caused this appeal to be taken. See Fed.R.App.P. 38.
The judgment below is affirmed.