Defendants have moved for summary judgment on the claims that survived defendants pre-answer motion to dismiss the complaint. Defendants’ motion for summary judgment is denied. This Court’s Decision and Order dated January 11, 2022 (NYSCEF Doc. No. 072) and the January 11, 2022 transcript of proceedings relating to the motion to dismiss are incorporated herein for a description of plaintiffs’ claims. After extensive discovery in this case, the competing statements of material facts (NYSCEF Doc. Nos. 107, 137) demonstrate that there are disputed issues of fact that preclude summary judgment. Defendants have not proffered indisputable evidence establishing that defendants are entitled to judgment as a matter of law. Indeed, it is undisputed that defendant Wilmington Trust Company was simultaneously acting as both the Class A and the Class B Trustee. And it is also undisputed that any sale of the Boeing 737 aircraft which were collateral for the notes at issue had to be commercially reasonable. There are disputed issues of fact as to whether the sale was commercially reasonable and disputed issues of fact concerning whether Wilmington Trust Company breached its fiduciary duties and was aided and abetted by other defendants in doing so. A Note of Issue with a jury demand has been filed. Pursuant to Rule 30 of Section 202.70(g) of the Uniform Rules for the Supreme and County Courts, the parties must participate in a Mandatory Settlement Conference. Pursuant to the parties’ joint letter (NYSCEF Doc. No. 102), the parties consent to a settlement conference before this Court. The parties shall efile a joint letter containing mutually convenient dates and times for a settlement conference and the Court will attempt to schedule the conference although presently there is little availability. If the parties agree to a reference to the New York State Supreme Court ADR Program, please efile a joint letter and an Order shall be issued. The oral argument scheduled for October 30, 2023 is cancelled. A status conference is scheduled for February 26, 2024 at 10:00 a.m. This Court will retire on December 31, 2023 and this case may be reassigned to another Justice of the Commercial Division shortly thereafter. Therefore, the date of the next status conference date may be adjourned or advanced. Dated: October 3, 2023.
