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| SDS Co., Inc. v Ilyssa Mfg. Corp. |
| 2007 NY Slip Op 50106(U) [14 Misc 3d 1221(A)] |
| Decided on January 25, 2007 |
| Supreme Court, Kings County |
| Rivera, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Supreme Court, Kings County
SDS Co., Inc., Plaintiff,
against
Ilyssa Manufacturing Corp. d/b/a Johns Gourmet, Defendant,
|
32812/05
Francois A. Rivera, J.
By notice of motion filed on June 1, 2006, plaintiff SDS Co., Inc. moves pursuant to CPLR §3212 for summary judgment against defendant Ilyssa Manufacturing Corporation (hereinafter IMC) for the sum of $53,084.73. IMC opposes the motion.
THE COMPLAINT
On October 25,2005, plaintiff commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. The complaint contains the following five allegations of fact in support of two causes of action. Plaintiff and IMC are incorporated under the laws of the State of New York. Defendant is indebted to the plaintiff in the amount of $53,084.73 with interest from July 29, 2005, that amount being the reasonable valuable for goods and services delivered to IMC from April through July 29, 2005, at IMC's request. IMC has not paid any part of the monies demanded. On October 3, 2005, plaintiff mailed to the defendant a statement of account in the sum of $53,084.73 which was retained by the defendant without objection thereto.
THE ANSWER
IMC's amended answer to the complaint contain eight allegations of fact in support of four affirmative defenses as follows. The first defense is that plaintiff failed to mitigate damages. The second is that the complaint fails to state a cause of action upon which relief may be granted. The third is that the complaint is a barred by the doctrine of accord and satisfaction. The fourth is that plaintiff has failed to acquire personal jurisdiction over the defendant.
PLAINTIFF'S MOTION PAPERS
Plaintiff's motion papers consists of an affidavit of plaintiff's vice-president, Richard Spillman, and five annexed exhibits. Annexed exhibit A is plaintiff's one page, combined summons and complaint. Exhibit B is IMC's amended answer. Exhibit C is plaintiff's statement of account dated September 14, 2005 and addressed to IMC. This two page document contains (44) forty four separate date entries beginning with April 25 and ending with July 29, 2005. By each date entry is a transaction identified by invoice number and corresponding dollar amount. Along side the transaction description are two columns, one for the amount due and another for [*2]the total balance due. The last entry in the total balance due column is $40,760.83. Exhibit D is a letter by plaintiff to the defendant dated October 13, 2005, advising of a revised inventory available on plaintiff's floor having a total value of $13, 823.90. Exhibit E contains each of the corresponding forty four (44) invoices identified in exhibit C.
DEFENDANT'S OPPOSITION PAPERS
Defendant's opposition papers consist of the affirmation of its counsel and four annexed exhibits. The first exhibit, marked exhibit 1, is an affidavit from Jeffrey Levi, IMC's president. The second exhibit, marked exhibit 1(a), is a copy of invoice number 13136 dated April 25, 2005, reflecting a payment of $1,536.35 to cover the total cost of invoice numbers 13136, 13199 and 13202. The third and fourth exhibits, marked A and B respectively, are the pleadings.
PLAINTIFF'S REPLY
Plaintiff's reply consists of the affirmation of its counsel and annexed exhibit A. The exhibit is plaintiff's statement of account to IMC dated August 14, 2006. The two page document contains forty-one (41) date entries commencing with May 3, and ending with July 29, 2005. Following each date entry is a series of transactions identified by invoice number and corresponding dollar amounts. Along side the transaction description is a column for the amount due and a column for total balance due. The amount due entry is for $39,224.48 and indicates that it is over ninety (90) days past due. The total balance due is also for $39,224.48.LAW AND APPLICATION
UCC 2-606 provides that an: (1) Acceptance of goods occurs when the buyer (a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity; or (b) fails to make an effective rejection.
Upon an improper delivery of goods a buyer may "(a) reject the whole; or (b) accept the whole; or (c) accept any commercial unit or units and reject the rest"(UCC 2-601). Rejection "must be within a reasonable time after their delivery or tender" (UCC 2-602[1]), and any act inconsistent with the seller's ownership of the goods constitutes an acceptance (UCC 2-606[1][c], including their retention without a seasonable notice of revocation of acceptance (Tobron Office Furniture Corp. v. King World Productions, Inc., 161 AD2d 355 [First Dept 1990], citing DiDomenico Packaging Corp. v. Nails Again, 139 Misc 2d 525).
An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due (Sisters of Charity Hosp. of Buffalo v. Riley, 231 AD2d 272, 282[4th Dept.1997], citing Jim-Mar Corp. v. Aquatic Constr., 195 AD2d 868, 869 [Third Dept.1993]). An essential element of an account stated is an agreement regarding the amount of the balance due (Sisters of Charity Hosp. of Buffalo v. Riley, supra 231 AD2d at 283, citing Interman Indus. Prods. v. R.S.M. Electron Power, 37 NY2d 151, 153-154 [1975]).
A party meets the "initial burden of establishing its entitlement to judgment as a matter of law on its cause of action based upon an account stated by establishing, with admissible evidence, the receipt and retention of bills without objection within a reasonable time" (LD Exch. v. Orion Telcom. Corp., 302 AD2d 565 [2nd Dept. 2003], citing Jovee Contr. v. AIA Envtl., 283 AD2d 398 [2nd Dept. 2001]).
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Such an agreement may be implied if a party receiving a statement of account keeps it without objecting to it within a reasonable time because the party receiving the account is bound to examine the statement and object to it, if objection there be. Silence is deemed acquiescence and warrants enforcement of the implied agreement to pay (Chisholm-Ryder Co. v. Sommer & Sommer, 70 AD2d 429, 431 [Fourth Dept. 1979]; citing Rodkinson v. Haecker, 248 NY 480 [1928]). An agreement may also be implied if the debtor makes partial payment. The partial payment is considered acknowledgment of the correctness of the account (George S. May Intern. Co. v Thirsty Moose, Inc., 19 AD3d 721 [3rd Dept. 2005] citing, Hussey v. Leggio Agency, 299 AD2d 690, 691 [2002]). Although a cause of action for account stated will fail "[w]here either no account has been presented or there is any dispute regarding the correctness of the account" (M & A Constr. Corp. v. McTague, 21 AD3d 610, 611-612 [2005]).
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]).
Plaintiff seeks summary judgment finding that defendant is indebted to it in the amount of $53,084.73, plus interest since July 2005. Plaintiff's first cause of action is for the reasonable valuable for goods and services delivered to IMC from April through July 29, 2005 at IMC's request. The documentary evidence an affidavits submitted, however, do not support summary judgment on the first cause of action as a matter of law. The proofs submitted lack an affidavit from anyone with personal knowledge attesting to IMC's request for delivery of plaintiff's good, the reasonable value of the items delivered to IMC or plaintiff's demand for payment. In fact, it was not until the court reviewed IMC's opposition papers that it learned that plaintiff is in the business of selling cardboard boxes.
Plaintiff's second cause of action is for an account stated. Plaintiff's annexed documentary included a statement on account dated September 14, 2005 issued to IMC. The forty-four (44) itemized entries therein are supported by the their corresponding invoices. Each invoice contains a handwritten marking or signature reflecting IMC's acceptance of the corresponding delivery.
Mr. Levi, IMC's president, admits that plaintiff has made deliveries to defendant, that plaintiff would send invoices for the goods delivered and that IMC would pay and in fact did pay at least some of those invoices. Mr. Levi claims that plaintiff's deliveries of cardboard boxes were often late, that many of the boxes lacked IMC's logo, and that many contained rodent droppings. He claims that he made numerous telephone calls to the plaintiff to complain about the poor service and quality. He also claims that invoice numbers 13136, 13199 and 13202 were paid and that the inventory described in plaintiff's exhibit D was sold to Glen Fresh Foods.
Mr. Levi, however, does not deny receipt of plaintiff's exhibit C reflecting an account stated and, therefore admits to same (CPLR§3018[a]). He contends that the account is inaccurate because it does not reflect a credit for the aforementioned invoices that he already paid. He also [*4]generally alleges poor quality and late delivery of goods in the opposition papers.
Although he claims making numerous telephone calls to complain to the plaintiff, he does not state that he actually communicated his dissatisfaction to anyone. Moreover, he does not state that he rejected the goods delivered. Rather, he implicitly indicates that he grudgingly accepted the nonconforming deliveries (UCC 2-606).
The affirmation of plaintiff's counsel in its reply advises that the partial payment on invoice numbers 13136, 13199 and 13202 was made by a check totaling ($1,536.35). Counsel further alleges that the check was dated September 16, 2005, which was two days after plaintiff sent the defendant a statement of account.
Plaintiff has presented prima facie evidence of an agreement between itself and IMC based upon prior the transactions between them with respect to the correctness of the account items and balance due. The agreement is supported by their history and by IMC's admitted partial payment on the account.
The problem, however, is that the statement of account which plaintiff has demonstrated, as set forth in exhibit C, is for the amount of $40,760.83 and plaintiff seeks judgment on an account stated for the amount of $53,084.73. The court in conducting its search of the record found three statement of accounts, namely, plaintiff's exhibit C in the motion, defendant's exhibit 1(a) in opposition and exhibit A in plaintiff's reply. Not one of them reflected a balance due of $53,084.73. In fact, none of them referenced an entry for the inventory valued at $13,823.90 described in plaintiff's exhibit D. The court finds that exhibit D is merely a facsimile transmission intended for IMC reflecting the presence of certain inventory on plaintiff's floor. It does not contain an invoice or order number and it does not state a balance due from IMC. It is clearly not a statement of account and can not be used to support the amount demanded in the complaint on a theory of account stated. Plaintiff has therefore, not demonstrated IMC's express or implied agreement on an account stated for a balance due of $53,084.73 (Sisters of Charity Hosp. of Buffalo v. Riley, supra, 231 AD2d at 282-283).
In sum, plaintiff has failed to demonstrate entitlement to summary judgment against IMC for $53,084.73 on either cause of action of the complaint. Plaintiff's motion for summary judgment is denied.
The foregoing constitutes the decision and order of this court
_____________________________xJ.S.C.
Enter forthwith
_____________________________x
J.S.C.