Preview
(FILED: NASSAU COUNTY CLERK 0672872016 12:14 PM | INDEX NO. 608434/2015
nS Hone rok ORDER RECEIVED NYSCEF: 96/7Ay2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
PRESENT: ;
HON. DANIEL PALMIERI
Justice Supreme Court: “TRIAL TERM PART 17
remnant nnn nnn nnn nnn bemanennnnnnnnnnnnnnnnn-X,
VALLEY CONTAINER, INC., INDEX NO.: 608434/15
: Plaintiff, Motion Date: 5-2-15
- against - Submit Date: 5-31-16
' Mot. Seq. No. 001
PREMIUM FROZEN FOODS, INC.,
Defendant.
The following papers have been read ‘
Notice of Motion, dated 4-7-16..
Affirmation in Opposition, dated ‘
Reply Affidavit, dated 5-11-16...
Reply Affirmation, dated 5-12-1
This motion by the plaintiff for summary judgment on its complaint is granted in the amount
|
of $66,085.59, with interest at the contract rate of 1.5% per month from May 28, 2015, with the
'
d
costs and disbursements as taxed by the Clerk.
w
This is a case involving the sale of goods. The plaintiff, Valley Container, is a manufacturer
of labels and boxes and sold them to the defendant, a frozen food distributor. The plaintiff sent
4 a
invoices to defendant from October 15!'2014 to April 28, 2015 totaling $66,085.59, for which it
{ :
claims payment was not made. Additionally, plaintiff asserts it is owed $8,059.00 for labels and
f
boxes made specifically for defendant that are still in plaintiff” s inventory and which cannot be sold
r
s
to any other buyer. Defendant claims that the boxes and labels it received were of inferior quality and
that on January 19, 2015, it rejected then, and therefore does not owe plaintiff anything. Plaintiff
now moves summary judgment.
The standards to be applied on a motion for summary judgment are well established.
“A party moving for summary judgment must make a prima facie showing of entitlement
1 of 8|
+ :
to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of
fact from the case.” Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d (1985). After the moving
party has shown they are entitled to surimary judgmen “__. the party opposing the motion must
demonstrate by admissible evidence the existence ofa factuallissue requiring a trial of the action
or tender an acceptable excuse for his failure so todo... .” Zuckerman v. City of New York, 49
N.Y.2d 557 (1980). “In determining a motion:for summary judgment, the court must view the
evidence in the light most favorable to the nonmoving party.” Stukas v. Streiter, 83 A.D.3d 18
(2011). Even where there are some issties in dispute in the case which have not been resolved, the
existence of such issues will not defeat a summary judgment motion if, even when the facts are
constried in the nonmoving party's favor, the moving party would still be entitled to relief. Brooks
v. Blue Cross of Northeastern New York Inc., 190 AD2d 894 (3d Dept. 1993). However, absent
this initial showing, the court should aay the motion, without passing on the sufficiency of the
opposing papers. Winegrad v New York Univ. Med. Cir., supra.
If such a prima facie case is made, the burden shifts tothe non-moving party. To defeat
It
the motion for summary judgment the opposing party must come forward with evidence to
demonstrate the existence of a material/issue of fact requiring. a trial. CPLR 3212 (b); see also
GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965 (1985); Zuckerman v. City
of New York, supra. The non-moving party must lay bare’ all of the facts at its disposal regarding
the issues raised in the motion. Mgrditehian v. Donato, 141 AD2d 513 (2d Dept. 1988).
i '
Conclusory allegations are insufficient (Zuckerman v. City of New York, supra), and the defending
party must come forward with evidentiary proof in support of the allegations. Fleet Credit Corp.
2
2 of 8>
v. Harvey Hutter & Co., Inc., 207 AD.2d 380 (2d Dept. 1994); Toth v. Carver Street Associates,
191 AD2d 631 (2d Dept. 1993).
Plaintiff presents an affidavit from Robert Niedermeier, its General Manager.
Niedermeier states that plaintiff and defendant had been doing business with each other beginning
in January of 2014 and up until October of 2014 there were no problems. During that period all
invoices were paid in a timely manner. Healso states that with regard to the unpaid invoices he
corresponded with Roy Tuccillo, Jr., the President of the defendant, numerous times about these
invoices, and that Tucillo never once objected to the goods that were received, and promised
payment. On April 7, 2015, Niedermiet also received an email from Tuccillo indicating that he
would make payments and appreciated plaintit? s patience. Niedermeier does not provide any
detail concerning the goods claimed tohave been specially made for defendant, but were not
delivered. .
In opposition, defendant submits an affidavit made by Tucillo. He does not deny that the
subject invoices were not paid, nor the receipt and use of the'hoxes. He claims that he has never
dealt directly with the plaintiff, asserting that a person in his office, named “Stephanie” was the
one who dealt with Niedermeier. No separate affidavit from “Stephanie” is submitted. He does
not deny the contents of the email sent from defendant as described in the preceding paragraph.
Rather, he asserts that the April 7, 2015, email regarding future payments was sent by his father,
who had no knowledge of the situation’ but was simply trying to placate the plaintiff. No
A
affidavit from his father is submitted. | Tucillo claims that orders were placed through a broker,
Richard Loos, and after October 15, 2014 the goods he had received were of inferior quality. He
3 0f 8—-
claims that the labels would peel off, bokes were “crushing” and they were not made of the
requested material. Defendant contends that he complained to Loos on many occasions, telling
him of the problems with the boxes and that he would not.be paying for them and that he would
not want any more shipped as they were of inferior quality. He claims that he also sent him
photographs of the allegedly defective Product, and toward the end of 2014 Loos came and
observed the boxes. Other that what is described in the following paragraph, no dates are
provided for any of the contacts he had ‘with Loos, or when or by whom the photographs were
taken, or which shipment from the plaintiff is ‘depicted.
On January 19, 2015, defendant vent what it claims was a rejection letter to Loos and to the
plaintiff. The letter stated that customers had been complaining of similar problems regarding the
|
1
labels and boxes getting crushed.
In reply, Loos submits an affidavit, stating that he was*not made aware of any such
problems regarding the boxes at any time and that he never received the January 19, 2015
rejection letter. ‘ |
In his own replying affidavit, Niedermbier also denies receipt of the letter, noting that absence of
an address or email or fax number for plaintiff or Loos on the letter. ‘Also attached to
Niedermeier’s statement is a purchase érder for more boxes dated April 28, 2015 signed by
Tucillo.
: i . .
The Court finds that the plaintiff has established a prima facie case for summary judgment
1
oo .
on the invoices sent for the boxes and labels delivered. The plaintiff has done so by providing
invoices from October 15, 2014 until April 28, 2015 totaling $66,085.59. These invoices show
the delivery date, quantity and price of the boxes shipped out. The burden thus shifts to the
4 of 8.
>
defendant to show the existence of a factual issue requiring a trial regarding plaintiff's claim for
the unpaid invoices. However, there is to detail given in support of plaintiff's claim for payment
regarding those boxes claimed to have been specially made fc defendant, and plaintiff admits
they remain in its inventory. acon, no prima facie case is made out regarding the same,
and thus so much of the motion that seeks summary judgment based on manufacture of those
boxes is denied, without regard to the strength of the opposing papers, Winegrad v New York
Univ. Med. Ctr., supra.
As noted above, the defendant never claims that it did not order the boxes represented on
the invoices, or that they never were received, or that they were not used. Under these and the
: |
other circumstances discussed below, the Court finds that it has failed to raise an issue of fact
sufficient to merit a trial.
Although neither plaintiff nor defendant make reference to it, this case is governed by the
Uniform Commercial Code, Article 2. Undér UCC 2-601, if the goods or tender of delivery fail
in any respect to conform to the contract the buyer may reject the goods. UCC 2-601. However,
under UCC 2-602, the buyer must reject the goods within a reasonable time, must seasonably
i
notify the seller and must hold the goods with reasonable caré for a time sufficient for the seller to
W
remove them. UCC 2-602. The only form of a clear rejection‘offered by the defendant is the letter
addressed to the Loos and plaintiff. Loos has denied that he ever received the letter, and
Niedermeier in an affidavit in reply, also says plaintiff never received it. Although mere denial of
receipt is insufficient to rebut the presumption of delivery, here there is insufficient indication of a °
valid mailing, email or fax that would Cause the presumption to arise in the first instance. As
pointed out by plaintiff, the letter contains no addresses, fax numbers or emails and all Tucillostates is that it was “sent.” Under these circumstances, the Court cannot find a presumption of
delivery. Cf, Residential Holding Corp. y Scottsdale Ins. Co., 286 AD2d 679 (2d Dept. 2001).
In view of plaintiff's denials, there is thus no proof that the letter rejecting the goods was ever
received. Without such notice, there was no rejection and no possibility of any remedy for breach
based on the alleged non-conformity ofthe goods. UCC 2-607(3)(a).
In any event, even if one were tol assume that this letter had been “sent” and received, it
would still not qualify as a timely and proper rejection. The defendant took ownership of the
goods and shipped them out to customess. This would act as an acceptance, as UCC 2-602
requires the buyer to hold the goods with reasonable care for a time sufficient for the seller to
remove them. There has been no showihg by the defendant that they held the goods for any
amount of time for the plaintiff to recojer them after learning of the defects.
The defendant has attached pictures of what he claims to be the defective boxes. However,
these photographs are not dated or authenticated as being part of the disputed shipment and are
thus inadmissible of proof ofthe defects Therefore, it is the defendant’s customer complaints
alone upon which it relies. No specifics are provided as to when such complaints were received,
and which shipment of plaintiff's boxes and labels was involved. It should also be noted that on
April 28, 2015 there is a signed letter from the President of the defendant, Tuccillo, ordering more
boxes. That order does not in any way indicate that what was being ordered was different from
the goods of which he complains, rendering it inconsistent with the complaints of inferior quality
allegedly made in his January 19, 2015 letter, and repeated here.
a
In that regard, Tucillo states that the product delivered was of a different quality from what
6 of 8had been ordered and listed defects, such as peeling of labels and crushed boxes after receiving
complaints from his own customers. However, where the goods have been used, mere
complaints about his customer’s dissatisfaction do not constitute a clear and unequivocal
rejection. Sears, Roebuck & Co. v Galloway, 195 AD2d 825 (3d Dept. 1993). Further the
defects — assuming they existed — were for boxes delivered from and after October 15, 2014, and
the rejection letter was not sent (again, \ssuming it was) until Tanuary 19, 2015. As indicated
above, it is undisputed that the goods were delivered and.used. during that period, and the
defendant has not provided any evidence regarding when it first received complaints from its
customers alerting it to the alleged defetis Therefore, even assuming that the January, 2015 letter
was sent and received, defendant has failed to rebut the plaintiff's prima facie showing of
acceptance of the goods and non-payment by advancing some proof of a timely and valid rejection
after learning of the allegedly hidden detecs UCC 2-607(3)(a); see Suraleb, Inc. v International
Trade Club, Inc., 13 AD3d 612 (2d Dept. 2004). i
Finally, acceptance can leave unimpaired other remedies for a buyer who claims defects in
the goods accepted (UCC 2-607[2]), but evenif defendant were not otherwise barred from
asserting them such remedies have not been raised; defendant in its answer has not
counterclaimed for damages nor has it sought a reduction in the purchase price. Indeed, no proof
of loss of any amount stemming from the alleged defects has been presented. Plaintiff is
therefore entitled to summary judgment on its first cause of action in the amount of $66,085.59,
with interest at the contract rate of 15% per month from May 28, 2015, 30 days after the total
amount was still unpaid.
7 of 8All contentions not discussed are, cither unnecessary to’the determinations reached here or
1
i i i :
are without merit. All requests for relief not specifically addressed are denied.
Submit judgment to Clerk. ;
i :
The Third Cause of Action is severed and continued.
4 7 5
This shall constitute the Decision and Order of this Court.
: ; 4
ENTE
DATED: June 23, 2016 :
: HON.;DANIEL PALMIERI
' Supreme Court Justice |
_, ENTERED
Attorneys for Plaintiff
Goldman, Horowitz & Cherno, ELP : a JUN 28 2016
47 Post Avenue i + a
‘ : : NASSAU COUNTY °
Westbury, NY 11590 oO GOUNTY CLERK'S OEFICE
: i : a
Attorneys for Defendant : ! 4
-Kert & Kert PLLC 4 * i 4
666 Old Country Road, Suite 201 | fo : ne
Garden City, NY 11530 Bo t i
8 of 8
jk
Preview
(FILED: NASSAU COUNTY CLERK 0672872016 12:14 PM | INDEX NO. 608434/2015 nS Hone rok ORDER RECEIVED NYSCEF: 96/7Ay2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT: ; HON. DANIEL PALMIERI Justice Supreme Court: “TRIAL TERM PART 17 remnant nnn nnn nnn nnn bemanennnnnnnnnnnnnnnnn-X, VALLEY CONTAINER, INC., INDEX NO.: 608434/15 : Plaintiff, Motion Date: 5-2-15 - against - Submit Date: 5-31-16 ' Mot. Seq. No. 001 PREMIUM FROZEN FOODS, INC., Defendant. The following papers have been read ‘ Notice of Motion, dated 4-7-16.. Affirmation in Opposition, dated ‘ Reply Affidavit, dated 5-11-16... Reply Affirmation, dated 5-12-1 This motion by the plaintiff for summary judgment on its complaint is granted in the amount | of $66,085.59, with interest at the contract rate of 1.5% per month from May 28, 2015, with the ' d costs and disbursements as taxed by the Clerk. w This is a case involving the sale of goods. The plaintiff, Valley Container, is a manufacturer of labels and boxes and sold them to the defendant, a frozen food distributor. The plaintiff sent 4 a invoices to defendant from October 15!'2014 to April 28, 2015 totaling $66,085.59, for which it { : claims payment was not made. Additionally, plaintiff asserts it is owed $8,059.00 for labels and f boxes made specifically for defendant that are still in plaintiff” s inventory and which cannot be sold r s to any other buyer. Defendant claims that the boxes and labels it received were of inferior quality and that on January 19, 2015, it rejected then, and therefore does not owe plaintiff anything. Plaintiff now moves summary judgment. The standards to be applied on a motion for summary judgment are well established. “A party moving for summary judgment must make a prima facie showing of entitlement 1 of 8| + : to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d (1985). After the moving party has shown they are entitled to surimary judgmen “__. the party opposing the motion must demonstrate by admissible evidence the existence ofa factuallissue requiring a trial of the action or tender an acceptable excuse for his failure so todo... .” Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). “In determining a motion:for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party.” Stukas v. Streiter, 83 A.D.3d 18 (2011). Even where there are some issties in dispute in the case which have not been resolved, the existence of such issues will not defeat a summary judgment motion if, even when the facts are constried in the nonmoving party's favor, the moving party would still be entitled to relief. Brooks v. Blue Cross of Northeastern New York Inc., 190 AD2d 894 (3d Dept. 1993). However, absent this initial showing, the court should aay the motion, without passing on the sufficiency of the opposing papers. Winegrad v New York Univ. Med. Cir., supra. If such a prima facie case is made, the burden shifts tothe non-moving party. To defeat It the motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material/issue of fact requiring. a trial. CPLR 3212 (b); see also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965 (1985); Zuckerman v. City of New York, supra. The non-moving party must lay bare’ all of the facts at its disposal regarding the issues raised in the motion. Mgrditehian v. Donato, 141 AD2d 513 (2d Dept. 1988). i ' Conclusory allegations are insufficient (Zuckerman v. City of New York, supra), and the defending party must come forward with evidentiary proof in support of the allegations. Fleet Credit Corp. 2 2 of 8> v. Harvey Hutter & Co., Inc., 207 AD.2d 380 (2d Dept. 1994); Toth v. Carver Street Associates, 191 AD2d 631 (2d Dept. 1993). Plaintiff presents an affidavit from Robert Niedermeier, its General Manager. Niedermeier states that plaintiff and defendant had been doing business with each other beginning in January of 2014 and up until October of 2014 there were no problems. During that period all invoices were paid in a timely manner. Healso states that with regard to the unpaid invoices he corresponded with Roy Tuccillo, Jr., the President of the defendant, numerous times about these invoices, and that Tucillo never once objected to the goods that were received, and promised payment. On April 7, 2015, Niedermiet also received an email from Tuccillo indicating that he would make payments and appreciated plaintit? s patience. Niedermeier does not provide any detail concerning the goods claimed tohave been specially made for defendant, but were not delivered. . In opposition, defendant submits an affidavit made by Tucillo. He does not deny that the subject invoices were not paid, nor the receipt and use of the'hoxes. He claims that he has never dealt directly with the plaintiff, asserting that a person in his office, named “Stephanie” was the one who dealt with Niedermeier. No separate affidavit from “Stephanie” is submitted. He does not deny the contents of the email sent from defendant as described in the preceding paragraph. Rather, he asserts that the April 7, 2015, email regarding future payments was sent by his father, who had no knowledge of the situation’ but was simply trying to placate the plaintiff. No A affidavit from his father is submitted. | Tucillo claims that orders were placed through a broker, Richard Loos, and after October 15, 2014 the goods he had received were of inferior quality. He 3 0f 8—- claims that the labels would peel off, bokes were “crushing” and they were not made of the requested material. Defendant contends that he complained to Loos on many occasions, telling him of the problems with the boxes and that he would not.be paying for them and that he would not want any more shipped as they were of inferior quality. He claims that he also sent him photographs of the allegedly defective Product, and toward the end of 2014 Loos came and observed the boxes. Other that what is described in the following paragraph, no dates are provided for any of the contacts he had ‘with Loos, or when or by whom the photographs were taken, or which shipment from the plaintiff is ‘depicted. On January 19, 2015, defendant vent what it claims was a rejection letter to Loos and to the plaintiff. The letter stated that customers had been complaining of similar problems regarding the | 1 labels and boxes getting crushed. In reply, Loos submits an affidavit, stating that he was*not made aware of any such problems regarding the boxes at any time and that he never received the January 19, 2015 rejection letter. ‘ | In his own replying affidavit, Niedermbier also denies receipt of the letter, noting that absence of an address or email or fax number for plaintiff or Loos on the letter. ‘Also attached to Niedermeier’s statement is a purchase érder for more boxes dated April 28, 2015 signed by Tucillo. : i . . The Court finds that the plaintiff has established a prima facie case for summary judgment 1 oo . on the invoices sent for the boxes and labels delivered. The plaintiff has done so by providing invoices from October 15, 2014 until April 28, 2015 totaling $66,085.59. These invoices show the delivery date, quantity and price of the boxes shipped out. The burden thus shifts to the 4 of 8. > defendant to show the existence of a factual issue requiring a trial regarding plaintiff's claim for the unpaid invoices. However, there is to detail given in support of plaintiff's claim for payment regarding those boxes claimed to have been specially made fc defendant, and plaintiff admits they remain in its inventory. acon, no prima facie case is made out regarding the same, and thus so much of the motion that seeks summary judgment based on manufacture of those boxes is denied, without regard to the strength of the opposing papers, Winegrad v New York Univ. Med. Ctr., supra. As noted above, the defendant never claims that it did not order the boxes represented on the invoices, or that they never were received, or that they were not used. Under these and the : | other circumstances discussed below, the Court finds that it has failed to raise an issue of fact sufficient to merit a trial. Although neither plaintiff nor defendant make reference to it, this case is governed by the Uniform Commercial Code, Article 2. Undér UCC 2-601, if the goods or tender of delivery fail in any respect to conform to the contract the buyer may reject the goods. UCC 2-601. However, under UCC 2-602, the buyer must reject the goods within a reasonable time, must seasonably i notify the seller and must hold the goods with reasonable caré for a time sufficient for the seller to W remove them. UCC 2-602. The only form of a clear rejection‘offered by the defendant is the letter addressed to the Loos and plaintiff. Loos has denied that he ever received the letter, and Niedermeier in an affidavit in reply, also says plaintiff never received it. Although mere denial of receipt is insufficient to rebut the presumption of delivery, here there is insufficient indication of a ° valid mailing, email or fax that would Cause the presumption to arise in the first instance. As pointed out by plaintiff, the letter contains no addresses, fax numbers or emails and all Tucillostates is that it was “sent.” Under these circumstances, the Court cannot find a presumption of delivery. Cf, Residential Holding Corp. y Scottsdale Ins. Co., 286 AD2d 679 (2d Dept. 2001). In view of plaintiff's denials, there is thus no proof that the letter rejecting the goods was ever received. Without such notice, there was no rejection and no possibility of any remedy for breach based on the alleged non-conformity ofthe goods. UCC 2-607(3)(a). In any event, even if one were tol assume that this letter had been “sent” and received, it would still not qualify as a timely and proper rejection. The defendant took ownership of the goods and shipped them out to customess. This would act as an acceptance, as UCC 2-602 requires the buyer to hold the goods with reasonable care for a time sufficient for the seller to remove them. There has been no showihg by the defendant that they held the goods for any amount of time for the plaintiff to recojer them after learning of the defects. The defendant has attached pictures of what he claims to be the defective boxes. However, these photographs are not dated or authenticated as being part of the disputed shipment and are thus inadmissible of proof ofthe defects Therefore, it is the defendant’s customer complaints alone upon which it relies. No specifics are provided as to when such complaints were received, and which shipment of plaintiff's boxes and labels was involved. It should also be noted that on April 28, 2015 there is a signed letter from the President of the defendant, Tuccillo, ordering more boxes. That order does not in any way indicate that what was being ordered was different from the goods of which he complains, rendering it inconsistent with the complaints of inferior quality allegedly made in his January 19, 2015 letter, and repeated here. a In that regard, Tucillo states that the product delivered was of a different quality from what 6 of 8had been ordered and listed defects, such as peeling of labels and crushed boxes after receiving complaints from his own customers. However, where the goods have been used, mere complaints about his customer’s dissatisfaction do not constitute a clear and unequivocal rejection. Sears, Roebuck & Co. v Galloway, 195 AD2d 825 (3d Dept. 1993). Further the defects — assuming they existed — were for boxes delivered from and after October 15, 2014, and the rejection letter was not sent (again, \ssuming it was) until Tanuary 19, 2015. As indicated above, it is undisputed that the goods were delivered and.used. during that period, and the defendant has not provided any evidence regarding when it first received complaints from its customers alerting it to the alleged defetis Therefore, even assuming that the January, 2015 letter was sent and received, defendant has failed to rebut the plaintiff's prima facie showing of acceptance of the goods and non-payment by advancing some proof of a timely and valid rejection after learning of the allegedly hidden detecs UCC 2-607(3)(a); see Suraleb, Inc. v International Trade Club, Inc., 13 AD3d 612 (2d Dept. 2004). i Finally, acceptance can leave unimpaired other remedies for a buyer who claims defects in the goods accepted (UCC 2-607[2]), but evenif defendant were not otherwise barred from asserting them such remedies have not been raised; defendant in its answer has not counterclaimed for damages nor has it sought a reduction in the purchase price. Indeed, no proof of loss of any amount stemming from the alleged defects has been presented. Plaintiff is therefore entitled to summary judgment on its first cause of action in the amount of $66,085.59, with interest at the contract rate of 15% per month from May 28, 2015, 30 days after the total amount was still unpaid. 7 of 8All contentions not discussed are, cither unnecessary to’the determinations reached here or 1 i i i : are without merit. All requests for relief not specifically addressed are denied. Submit judgment to Clerk. ; i : The Third Cause of Action is severed and continued. 4 7 5 This shall constitute the Decision and Order of this Court. : ; 4 ENTE DATED: June 23, 2016 : : HON.;DANIEL PALMIERI ' Supreme Court Justice | _, ENTERED Attorneys for Plaintiff Goldman, Horowitz & Cherno, ELP : a JUN 28 2016 47 Post Avenue i + a ‘ : : NASSAU COUNTY ° Westbury, NY 11590 oO GOUNTY CLERK'S OEFICE : i : a Attorneys for Defendant : ! 4 -Kert & Kert PLLC 4 * i 4 666 Old Country Road, Suite 201 | fo : ne Garden City, NY 11530 Bo t i 8 of 8 jk