At an inquest of this matter, plaintiff seeks liquidated damages, inter alia, based upon the defendant's breach of a linen supply contract.

While it is well-established law that parties to a contract may include any terms and provisions they choose, judicial scrutiny is necessary in the case of a liquidated damages clause. X.L.O Concrete Corp. v. John T. Brady and Company, et al, 104 AD2d 181, 482 NYS2d 476 (1st Dept. 1984). The Court must determine whether the clause is valid or, in fact, a penalty. Id. A liquidated damages clause will be deemed valid if the actual damages are difficult to calculate and the stipulated amount is proportionate to the anticipated loss due to the breach of contract. Truck Rent-A-Center, Inc. v. Puritan Farms 2nd, Inc., et al, 41 NY2d 420, 393 NYS2d 365 (1977); Morgan Services, Inc. v. Lavan Corp., 59 NY2d 796, 464 NYS2d 733 (1983); Quaker Oats Company v. Reilly, 274 AD2d 565, 711 NYS2d 498 (2nd Dept. 2000); Rallye Leasing, Inc. v. L.I. Seafood & Dumpling house, et al, 213 AD2d 533, 624 NYS2d 57 (2nd Dept. 1995); Ames Linen Service, a Division of Cortland Laundry, Inc. v. Gus Katz a/k/a Konstantinos Katsiroumbas, d/b/a A-1 Pizzeria, 8 AD3d 945, 779 NYS2d 600 (3rd Dept. 2004); Willner v. Willner, 145 AD2d 236, 538 NYS2d 599 (2nd Dept. 1989); Liberty Taxi Management, Inc. v. Gincherman, 2007 NY Slip Op. 32742(U) (Sup. Ct. New York County 2007).

It is axiomatic that at an inquest the plaintiff is required to prove all damages. 22 NYCRR §202.46. In this instance, besides marking into evidence an incomplete contract, which commenced on October 10, 2007, for a five-year term, and a stack of invoices, dated June 2007 to November 2007, plaintiff's only witness, the vice president of the corporation, offered the following testimony:

Are you employed by Best Metropolitan Towel Company Inc.?

Yes.

And are you the president of —

Vice president.

Did there come a time that Best Metropolitan entered into a contract with Afternoones?

Yes.

And is there a written contract?

Yes.

Do you have that contract with you?

Yes.

Mr. Beinin: Your Honor, I'd like to offer this as Plaintiff's Exhibit 1 in evidence.

The Court: Plaintiff's 1 in evidence.

Pursuant to that contract, were you supplying linen to the defendant?

I was.

And did you bill the defendant for your services?

We did.

And did there come a time when there was an outstanding balance due and owing that has not been paid?

Yes, there was.

What is that amount due?

$4,054.76.

And do you have the actual invoices that would total that sum of money with you?

Yes, I do.

Mr. Beinin: Your Honor, may we offer it as a package, they're all signed for invoices.

The Court: Okay. Plaintiff's Exhibit 2 in evidence.

(So marked.)

Did there come a time, Mr. Saverese, when the defendant decided not to use your services?

Yes. [*2]

And when was that?

November 13, 2007.

And at that time, did you attempt to pick up all of your merchandise from the defendant?

We did.

Were you able to obtain all of the merchandise that you had left with the defendant?

We were not.

Do you know what merchandise was not returned?

Yes.

Can you tell the Court what that was?

59 checkered pants.

The Court: Okay.

And 67 white shirts.

And what was the total due and owing for the merchandise not returned?

$1299.

Now, pursuant to the contract, Mr. Saverese, is there a liquidated damage clause for early termination of the contract?

There is.

Can you explain to the Court the formula used in that contract?

You take the number of weeks remaining in the contract, the average weekly volume, and25 percent of that is the liquidated damages.

And in this particular case, if you follow that formula to its conclusion, would you be owed some excess jurisdiction of this Court?

Yes.

And did you reduce the amount of liquidated damages so that we can bring the action to the Court? [*3]

Yes.

And what is the actual amount you would've

$32,400.03?

In liquidated damages?

Yes.

And what you're asking of

$19,003.

Making grand total of $25,000.

Notwithstanding the breadth of invoices, this Court finds the competent evidence can be gleaned from the invoices dated October 2, 2007 to November 13, 2007, supported by Edward Saverese's testimony, which proves that the defendant owes an outstanding balance of $1,646.53.

However, plaintiff missed the mark by failing to establish the market replacement value of the 67 white shirts and 59 checkered pants that the defendant failed to return. Moreover, there is a dearth of specific circumstances that would enlighten this Court as to how the liquidated damage amount is reasonably proportionate to plaintiff's anticipated loss due to defendant's breach. Truck Rent-A-Center, Inc., supra ; Ames Linen Service, a Division of Cortland Laundry, Inc., supra . Specifically, the plaintiff did not demonstrate the weekly volume contracted by the defendant, the amount charged on a weekly basis nor whether the linens supplied to the defendant were a special order that could not be used by a different client. In any case, the clause is inapplicable since the contract only lasted one month and the clause calls for a three-month period of time to calculate the damages.

Likewise, although the contract requires the defendant to pay plaintiff's attorney's fees upon breach, the plaintiff again failed to offer one scintilla of evidence regarding the value of any such incurred fees.

Accordingly, judgment is in favor of the plaintiff in the amount of $1,646.53 as well as costs and interest commencing November 13, 2007.

This constitutes the decision and order of this Court.

Dated: September 26, 2008

_______________________________________

Genine D. Edwards, J.C.C.