Dell's Maraschino Cherries Co., Inc. v. Shoreline Fruit Growers, Inc., No. 1:2010cv03789 - Document 99 (E.D.N.Y. 2012)

Court Description: ORDER granting in part and denying in part 74 Motion for Partial Summary Judgment; granting in part and denying in part 79 Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 8/14/2012. (Riley, Paul)

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Dell&#039;s Maraschino Cherries Co., Inc. v. Shoreline Fruit Growers, Inc. Doc. 99 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x DELL’S MARASCHINO CHERRIES CO., INC., Plaintiff, - against - MEMORANDUM AND ORDER 10 Civ. 3789 (ILG) (RER) SHORELINE FRUIT GROWERS, INC., et al., Defendants. ------------------------------------------------------x GLASSER, Senior United States District J udge: Plaintiff Dell’s Maraschino Cherries Co. Inc. (“Dell’s”), a Brooklyn-based producer of m araschino cherries—sweetened brine cherries often found in certain cocktails and on top of ice cream sundaes—on J une 23, 20 11 filed a second am ended com plaint against Shoreline Fruit Growers, Inc. (“Shoreline”), a corporation with its principal place of business in Traverse City Michigan, the self-proclaim ed “Cherry Capital of the World.” Also nam ed as defendants are several other Michigan-based defendants in the cherry business: Cherry Ke, Cherries-R-Us, and Great Lakes Packing Co. (“Great Lakes”) (together, “defendants”). Dell’s asserts claim s for a violation of the Perishable Agricultural Com m odities Act (“PACA”), 7 U.S.C. § 499(a), et seq., and state law claim s for breach of contract and breach of the im plied covenant of good faith and fair dealing against Shoreline, as well as state law claim s for tortious interference and civil conspiracy against Cherries-R-Us, Cherry Ke, and Great Lakes. On J uly 22, 20 11, defendants filed an answer to the second am ended complaint and Shoreline asserted several affirm ative defenses, along with counterclaim s for breach of contract and violations of PACA. Dockets.Justia.com All of the parties’ claim s arise out of an alleged contract between Dell’s and Shoreline in which Dell’s agreed to purchase 10 0 truckloads of Michigan brine cherries from Shoreline at a price of $ .49 per pound. Presently before the Court are crossm otions for sum m ary judgm ent on Dell’s claim s, Shoreline’s counterclaim s, and its affirm ative defense of com m ercial im practicability. For the reasons set forth below, the parties’ m otions are GRANTED in part and DENIED in part. I. BACKGROU N D Unless otherwise noted, the following facts are undisputed. Dell’s sells finished m araschino cherries to retail and wholesale custom ers. Plaintiff’s Statem ent of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 dated Mar. 30 , 20 12 ¶ 1 (“Pl.’s 56.1”) (Dkt. No. 75). Shoreline is an agricultural cooperative that at the tim e of the parties’ dispute was a wholesale seller of brine cherries. Pl.’s 56.1 ¶ 4; 1 Defendants’ Statem ent of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 dated Mar. 30 , 20 12 ¶ 2 (“Defs.’ 56.1”) (Dkt. No. 80 ). Great Lakes, an agent of Shoreline, processes, stores, and packs Shoreline’s brine cherries. Pl.’s 56.1 ¶ 7; Defs.’ 56.1 ¶ 9.2 Cherry Ke—a wholly-owned subsidiary of Cherries-R-Us, a cherry seller—is a business engaged in 1 Brine cherries are sweet cherries that have been soaked in a salt solution to rem ove their natural coloring and flavor; m araschino cherries are pitted brine cherries that have been soaked in sweetener, or som etim es alcohol, and food coloring. See, e.g., Melissa Clark, Cherries’ Garish Glory Revived, N.Y. Tim es, J uly 18, 20 0 7, http:/ / www.nytim es.com / 20 0 7/ 0 7/ 18/ dining/ 18appe.htm l. 2 Brine cherries are stored in brine pits—essentially large swim m ing pools full of brine—that hold anywhere from 20 0 ,0 0 0 to 30 0 ,0 0 0 pounds of them ; Great Lakes m aintains approxim ately 30 brine pits. Second Declaration of Robert M. Tata dated Apr. 27, 20 12 (“Tata Decl. II”) Ex. D (Cullim ore Dep.), at 12-13 (Dkt. No. 87). Processing of cherries entails destem m ing, sizing, pitting, and weighing the cherries and putting them into containers for sale. Id. Ex. D (Cullim ore Dep.), at 15. 2 cherry orchard m anagem ent services. Defs.’ 56.1 ¶¶ 3, 6; Tata Decl. II Ex. C (Veliquette Dep.), at 326. Dean Veliquette (“Veliquette”) holds key positions within each of the com panies: he is the “brine cherry m anager” of Shoreline, President of Cherries-R-Us, Vice President and Chairm an of the Board of Cherry Ke, and a board m em ber of Great Lakes. Affidavit of Dean Veliquette dated Mar. 28, 20 12 (“Veliquette Aff.”) ¶¶ 1, 10 (Dkt. No. 81).3 On J uly 13, 20 0 9, Arthur Mondella, Dell’s President, entered into a written contract with Veliquette, the contract’s drafter, to purchase 10 0 truckloads of “Michigan Brine Cherries (regulars)” at a price of 49 cents per pound, FOB Kewadin, Michigan from Shoreline (the “contract”). Pl.’s 56.1 ¶¶ 2, 8; Second Am ended Com plaint dated J une 23, 20 11 (“Am . Com pl.”) Ex. A (Dkt. No. 39).4 That price was a record low for brine cherries. Declaration of Robert Tata dated Mar. 28, 20 12 (“Tata Decl.”) Ex. A (Reidy Dep.), at 19 (Dkt. No. 77). The contract also included the following provisions: Term s: 30 days with credit lim it of $ 130 ,0 0 0 Shipping/ Freight/ Containers: Buyer [Dell’s] arranges and pays for all trucking of cherries. Shipm ent of 10 / loads per m onth average. 20 0 8 crop shipped until used approxim ately 10 loads (above and beyond what is currently set aside for Dell[’]s at Great Lakes Packing Co. per Trudy Cullim ore). Start shipping of the 20 0 9 crop no later than October 15, 20 0 9 and continue for a 12 m onth period. Buyer advises on size and load 3 The Veliquette affidavit is riddled with legal argum ent. Placing legal argum ent in an affidavit is plainly im proper, and the Court will only consider the facts in the affidavit that are based on Veliquette’s personal knowledge and adm issible in evidence. See, e.g., King v. Pension Trust Fund of Pension, Hospitalization & Benefit Plan of Elec. Indus., No. 0 1 Civ. 260 4 (ILG), 20 0 3 WL 220 71612, at *8 (E.D.N.Y. Sept. 5, 20 0 3) (ignoring legal argum ent in declaration). 4 A truckload of cherries weighs between 24,0 0 0 and 26,0 0 0 pounds. Tata Decl. II Ex. D (Cullim ore Dep.), at 28. 3 ship dates a m inim um of 2 business days ahead of pickup. Seller [Shoreline] agrees to pay freight on bins and barrel return. Buyer assures Seller that the trucks will be fully loaded with bins and/ or barrels in bins with no charge for em pty bins. Seller to start using Buyer’s containers when processing starts back up in August 20 0 9. Am . Com pl. Ex. A. Although Dell’s had purchased cherries from Shoreline in the past, the parties had never before entered into a written contract for 10 0 loads of cherries. Second Declaration of Arthur Mondella dated Apr. 26, 20 12 (“Mondella Decl. II”) ¶ 14 (Dkt. No. 86). The contract did not require Dell’s to purchase cherries exclusively from Shoreline. Am . Com pl. Ex. A. Dell’s picked up the first shipm ent of cherries on October 12, 20 0 9. Pl.’s 56.1 ¶ 11. And, in the m onths that followed, Dell’s requested and Shoreline provided cherries in varying am ounts under the contract. Mondella Decl. II ¶¶ 16, 20 . The parties used both Dell’s and Shoreline’s bins to ship the cherries. Pl.’s 56.1 ¶ 41; Tata Decl. Ex. A (Reidy Dep.), at 52. Although Shoreline initially attem pted to charge Dell’s a “bin rental fee” for use of its bins, Dell’s refused to pay the fee, and Shoreline never again invoiced Dell’s for it. Id. Ex. A (Reidy Dep.), at 97. During the contract’s term , Dell’s bought cherries from sources other than Shoreline, som etim es at a price equal to or lower than the contract price of $ .49 per pound. See, e,g., Mondella Decl. II ¶ 29 (“In J anuary 20 10 , Dell’s started purchasing cherries from [Traverse Bay Cherry Cooperative].”); Defs.’ 56.1 Ex. V (Dell’s spreadsheet indicating that during the term of the contract Dell’s purchased cherries from com panies other than Shoreline at or lower than the contract price of $ .49 per pound). On April 1 20 10 , Mondella and Veliquette had a telephone conversation regarding the rem ainder of loads of cherries due under the contract; Mondella and 4 Veliquette rem em ber the conversation differently. Mondella Decl. II ¶ 30 ; Veliquette Aff. ¶¶ 33-34. According to Veliquette, Mondella told him Dell’s would only take delivery of an additional 35 loads under the contract—an am ount that fell short of the 10 0 truckloads the two had agreed upon. Veliquette Aff. ¶ 34; Tata Decl. Ex. N (Veliquette Dep.), at 83. Mondella testified that in response to Veliquette’s inquiry to him whether he was going to be able to take the rem ainder of the loads under the contract, he said that he would. Tata Decl. Ex L (Mondella Dep.), at 213, 217. After this conversation, Shoreline began selling its inventory to custom ers besides Dell’s. Veliquette Aff. ¶ 36. Dell’s claim s that shortly thereafter, in or around May 20 10 , Shoreline started restricting Dell’s purchase of cherries under the contract. Declaration of Arthur Mondella dated Mar. 30 , 20 12 ¶ 11 (“Mondella Decl.”) (Dkt. No. 78). Though Shoreline objects to this characterization of its actions and when they occurred, Defs.’ Counterstatem ent of Material Facts dated Apr. 27, 20 12 ¶ 19 (“Defs.’56.1 Opp’n”) (Dkt. No. 90 ),5 the record is clear that on J une 7, 20 10 , Shoreline com m unicated to Dell’s the 5 Defendants’ Rule 56.1 Counterstatem ent does not fully com ply with Local Civil Rule 56.1(d), requiring “each statem ent controverting any statem ent of m aterial fact, [to] be followed by citation to evidence which would be adm issible, set forth as required by Fed. R. Civ. P. 56(c).” Failure to com ply with Local Rule 56.1 perm its a reviewing court to consider the facts at issue undisputed for purposes of the m otion. See Fed. R. Civ. P. 56(e)(2); Local Civil Rule 56.1(c); see also T.Y. v. N.Y. City Dep’t of Educ., 584 F.3d 412, 418 (2d Cir. 20 0 9) (“A nonm oving party’s failure to respond to a Rule 56. 1 statem ent perm its the court to conclude that the facts asserted in the statem ent are uncontested and adm issible.” (citation om itted)). The Court declines to do so. Cf. Taylor & Fulton Packing, LLC v. Marco Int’l Foods, LLC, No. 0 9 Civ. 2614 (ILG), 20 11 WL 6329194, at *4 n.2 (E.D.N.Y. Dec. 16, 20 11) (noting a court’s broad discretion to overlook a failure to com ply with Local Civil Rule 56.1). 5 total num ber of loads it would m ake available to Dell’s over the next three m onths: six loads in J une, six in J uly, and four in August; it also com m unicated that the size of the cherries would likely be only 18-20 m m . Tata Decl. Ex. E (Hicks Dep.), at 48 (“Q. It says it will m ostly be 18-20 s? A. Yes. And the total that you’re offering to m ake available as of J une 7th is six loads in J une, six in J uly, and four in August, correct? A. Yes.”). On J une 8, 20 10 , Great Lakes, on behalf of Shoreline, inform ed Dell’s that it could not m eet Dell’s request for four loads of 18/ 20 m m and 20 / 22 m m cherries. Id. Ex. E (Hicks Dep.), at 50 -51. At som e point later that m onth, Mondella called Veliquette, inform ing him that Dell’s was insisting on delivery of all 10 0 loads under the contract. Tata Decl. Ex. C (Veliquette Dep.), at 88; id. Ex. D (Cullim ore Dep.), at 55-56. On J une 25, 20 10 , Great Lakes em ployee, J ohanna Hicks (“Hicks”), sent an em ail to Dell’s em ployee, Mikhail Burlack (“Burlack”), stating, am ong other things, that Shoreline would only m ake 10 loads available to Dell’s during J uly and August. Id. Ex. E (Hicks Dep.) Ex. 9 (“Dean says he can m ake available to you for this J uly & August com parable [sic] to what you took last season ten (10 ) loads.”). After learning of this, Mondella sent the following m essage to Hicks: Dear J oanna, Regarding your em ail to [Mikhail], as far as pricing our contract is still in effect for the balance of the 10 0 containers not delivered. If you feel you cannot fulfill the balance of this contract let m e know and I will purchase it elsewhere and bill Shoreline the difference. Id. Ex. E (Hicks Dep.) Ex. 10 . On J une 28, 20 10 , Shoreline reiterated that it would not accept any m ore than 10 purchase orders from Dell’s and that it would not accept any m ore purchase orders until m id-August. Id. Ex. E (Hicks Dep.), at 62 & Ex. 11. 6 However, at the sam e tim e it was refusing to accept additional purchase orders from Dell’s, Shoreline was selling cherries to others at a price significantly higher than the Dell’s contract rate of $ .49 per pound. Id. Ex. C (Veliquette Dep.), at 443 (“Q. . . . You were taking spot orders though the spring and sum m er of 20 10 to sell cherries that originally had been to—earm arked for Arthur at $ .49 a pound, and you sold those for 59 [sic] or $ .67 per pound, correct. . . . A. That’s correct.”); Tata Decl. II Ex. D (Cullim ore Dep.), at 215 (“Q. And at this tim e, even though Dean was on notice that Dell’s wanted its last 50 truckloads, Dean was releasing cherries to Covita, Kum iniano, Burnette and Cibona at higher prices than the $ .49 a pound, wasn’t he? A. Yes.”). On J uly 21, 20 10 , Veliquette sent a m em orandum to Mondella, contending that Dell’s “ha[d] not acted in accordance with the agreem ent” in various ways: (1) by failing to provide the bins to be used in shipping the cherries; (2) failing to take delivery of cherries in a tim ely m anner; 6 (3) insisting on a price reduction for the cherries; and (4) exiting the previous year’s purchase orders early for the advantage of new, lower pricing on 20 0 9 cherries. Pl.’s 56.1 ¶¶ 38-39, 45, 49, 53. Veliquette also stated that Shoreline would provide Dell’s an additional 10 loads per m onth through Septem ber 4, 20 10 . Mondella Decl. II Ex. C. Mondella responded in an August 4, 20 10 letter to Veliquette that Dell’s “will purchase the balance of the fruit stated in our Agreem ent and on the term s conditions [sic] as stated in the Agreem ent.” Id. Ex. F. By letter dated August 9, 20 10 to Mondella, Veliquette again accused Dell’s of breaching the contract and stated that Shoreline was prepared to sell Dell’s eight loads 6 Reidy explained that this “m eans Dell’s did not take the num ber of loads required under the contract and that Dell’s was required to take “[t]en loads [a m onth] or som ething very close to that.” Tata Decl. Ex. A (Reidy Dep.), at 52-53. 7 of brine cherries at a price of $ .49 per pound. Id. Ex. D. Shortly thereafter, Dell’s issued purchase orders for all of the rem aining loads due under the contract, som e of which Shoreline provided. Id. ¶ 35. Veliquette by letter dated August 13, 20 10 reiterated that “[w]e would sell you an additional 8 loads at last year’s price” plus two additional loads but rejected Dell’s purchase orders for additional loads beyond those ten. Id. Ex. G (“We are rejecting Purchase Orders 1479 through 1532 for the reasons set forth in m y recent letter to you. Any additional sales beyond the 10 loads referenced above m ust be at 20 10 prices.”). When questioned about why he rejected these purchase orders, Veliquette testified: Q. Let’s just break it down. A. I had to reject the [Dell’s] purchase orders. I couldn’t—I had to reject them . We had other POs that he had issued earlier that hadn’t been filled. Q. Is it your position you just didn’t have enough fruit? Your testim ony yesterday indicated your—in August I think you had dozens of brine pits full of fruit. You had a warehouse with a m illion pounds of fruit in it then; isn’t that correct? A. We did. Q. So you had tons of fruit to satisfy this. A. The availability of the fruit was never the issue. Tata Decl. Ex. C (Veliquette Dep.), at 435. He further testified: Q. When I started this questioning, we were asking what happened to the m illion pounds of cherries that were processed in your—brine cherries that were processed in your plant in the m iddle of August. And what did you have, five m illion pounds of cherries that were out in your brine [p]its about that tim e? . . . A. The cherries in the brine pits would have been the end—end of harvest would have been both 20 0 9, 20 10 . Q. And if you wanted to, in August and Septem ber and October, you could have used the cherries that were overflowing at your warehouse and in your 32 brine pits to satisfy Arthur Mondella’s contract at Dell’s? . . . A. We had the—we had the cherries.” Id. Ex. C (Veliquette Dep.), at 443-44. 8 During the period of J une 20 10 through Septem ber 20 10 , Shoreline m ade available approxim ately 25 loads of cherries to Dell’s at a price of $ .49 per pound, and other than $ 3,367 in freight charges that the parties dispute, Dell’s paid Shoreline for all cherries provided under the contract. Pl.’s 56.1 ¶¶ 27, 78; see also Tata Decl. Ex. C (Veliquette Dep.), at 488 (“Q. . . . Dell’s has paid for all the fruit that you’ve supplied? A. Yes.”). But even with these additional loads, the 10 0 load am ount provided for in the contract was not fulfilled. See, e.g., Tata Decl. II Ex. A (Veliquette Dep.), at 91 (“Q. It’s fair to say that [Shoreline] did not deliver a hundred containers to Dell’s, correct? A. That’s correct.”); Tata Decl. Ex. D (Cullim ore Dep.), at 77 (“Q. And so it’s your understanding that 40 or 50 truckload[s] of cherries that were due to be delivered under the contract were not released for delivery; is that correct? . . . The Witness: That’s correct.”). On August 17, 20 10 , Dell’s initiated this action, alleging claim s against Shoreline for a violation of PACA, along with state law claim s for breach of contract and breach of the covenant of good faith and fair dealing. After filing the lawsuit, and when it becam e clear that Shoreline and Dell’s were not going to be able to com e to a resolution as to the balance of cherries due under the contract, Dell’s in Septem ber 20 10 purchased cover cherries at a price of $ 1.0 2 per pound from a Bulgarian company called Kum iniano Fruit Ltd. (“Kum iniano”). Mondella Decl. II ¶¶ 42-44. 7 After being granted leave to do so, Dell’s on J une 23, 20 11 filed a second am ended com plaint, asserting claim s for a violation of PACA and state law claim s for breach of 7 Defendants dispute whether the cherries from Kum iniano were in fact “cover” cherries. Reply Affidavit of Dean Veliquette dated May 3, 20 12 ¶ 9 (“Veliquette Reply Aff.”) (Dkt. No. 95). 9 contract and breach of the im plied covenant of good faith and fair dealing against Shoreline, as well as state law claim s for tortious interference and civil conspiracy against Cherries-R-Us, Cherry Ke, and Great Lakes. Defendants on J uly 22, 20 11 filed their answer, asserting several affirm ative defenses, along with counterclaim s for breach of contract and various violations of PACA. On March 30 , 20 12, the parties filed crossm otions for sum m ary. Dell’s seeks sum m ary judgm ent on its breach of contract and PACA claim s along with Shoreline’s com m ercial im practicability defense and breach of contract and PACA counterclaims. Dell’s Mem orandum of Law in Support of Partial Sum m ary J udgm ent dated Mar. 30 , 20 12 (“Pl.’s Mem .”) (Dkt. No. 76). Defendants seek sum m ary judgm ent on all of Dell’s claim s, as well as Shoreline’s counterclaims for breach of contract and violations of PACA. Defendants’ Mem orandum of Law in Support of Sum m ary J udgm ent dated Mar. 30 , 20 12 (“Defs.’ Mem .”) (Dkt. No. 83). II. D ISCU SSION A. Le gal Stan d ard Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). “‘An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonm oving party. A fact is m aterial if it m ight affect the outcom e of the suit under the governing law.’” Fincher v. Depository Trust & Clearing Corp., 60 4 F.3d 712, 720 (2d Cir. 20 10 ) (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 20 0 8)). The m oving party bears the burden of establishing the absence of any genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 10 6 S. Ct. 2548, 91 L. 10 Ed. 2d 265 (1986). When the burden of proof at trial would fall on the nonm oving party, it ordinarily is sufficient for the m ovant to point to a lack of evidence to go to the trier of fact on an essential elem ent of the nonm ovant’s claim . Id. at 322-23. To defeat a m otion for sum m ary judgm ent, the non-m oving party “‘m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts,’” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 20 11) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 10 6 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), and cannot “‘rely on conclusory allegations or unsubstantiated speculation.’” Id. (quoting Fed. Deposit Ins. Corp. v. Great Am . Ins. Co., 60 7 F.3d 288, 292 (2d Cir. 20 10 )). A court deciding a m otion for sum m ary judgm ent m ust “‘construe the facts in the light m ost favorable to the non-m oving party and m ust resolve all am biguities and draw all reasonable inferences against the m ovant.’” Brod v. Om ya, Inc., 653 F.3d 156, 164 (2d Cir. 20 11) (quoting William s v. R.H. Donnelley Corp., 368 F.3d 123, 126 (2d Cir. 20 0 4)). “‘Credibility determ inations, the weighing of the evidence, and the drawing of legitim ate inferences from the facts are jury functions, not those of a judge.’” Kaytor v. Elec. Boat Corp., 60 9 F.3d 537, 545 (2d Cir. 20 10 ) (quoting Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 , 120 S. Ct. 20 97, 147 L. Ed. 2d 10 5 (20 0 0 )); see also Gottlieb v. Carnival Corp., No. 0 4 Civ. 420 2 (ILG)(VP), 20 11 WL 70 4690 4, at *1 (E.D.N.Y. Feb. 1, 20 11). Moreover, in cases such as this one involving the interpretation of contractual term s, sum m ary judgm ent is appropriate only if the language of the contract is plain and unam biguous, considered in light of the context and structure of the agreem ent as a whole. See, e.g., ADP Dealer Servs., Inc. v. Planet Autom all, Inc., No. 0 9 Civ. 0 185 (ILG) 11 (RER), 20 12 WL 95211, at *3 (E.D.N.Y. J an. 12, 20 12) (citing Miller Marine Servs., Inc. v. Travelers Prop. Cas. Ins. Co., No. 0 4 Civ. 5679(ILG), 20 0 5 WL 2334385, at *5 n.3 (E.D.N.Y. Sept. 23, 20 0 5). “A court faced with cross-m otions for sum m ary judgm ent need not ‘grant judgm ent as a m atter of law for one side or the other,’ but ‘m ust evaluate each party’s m otion on its own m erits, taking care in each instance to draw all reasonable inferences against the party whose m otion is under consideration.’” Infanti v. Scharpf, No. 0 6 Civ. 6552 (ILG), 20 12 WL 511568, at *3 (E.D.N.Y. Feb. 15, 20 12) (quoting U.S. Bank Nat’l Ass’n v. Ables & Hall Builders, 696 F. Supp. 2d 428, 438 (S.D.N.Y. 20 10 )). With all of these principles in m ind, the Court first turns to Dell’s m otion for sum m ary judgm ent. B. D e ll’s Mo tio n fo r Su m m ary Ju d gm e n t 1. D e ll’s Bre ach o f Co n tract Claim New York has adopted the Uniform Com m ercial Code (“U.C.C.”), Article 2 of which provides a com prehensive body of rules applicable to “transactions in goods . . . .” N.Y.U.C.C. § 2-10 2 (McKinney 20 12). It is undisputed that the cherries at issue here are “goods” and thus that Article 2 of the U.C.C. applies.8 Pl.’s Mem . at 7; Defendants’ Mem orandum of Law in Opposition to Plaintiff’s Motion for Sum m ary J udgm ent dated Apr. 27, 20 12 at 6 (“Defs.’ Opp’n”) (Dkt. No. 92). Liability under the U.C.C., as with all breach of contract claim s, depends on “(1) the existence of a contract between [plaintiff] and th[e] defendant; (2) perform ance of the plaintiff’s obligations under the contract; 8 Nor do the parties dispute that New York law applies to all of the pendent state law claim s. 12 (3) breach of the contract by th[e] defendant; and (4) dam ages to the plaintiff caused by th[e] defendant’s breach.” Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir. 20 11) (citations om itted). Dell’s argues sum m ary judgm ent is warranted because Shoreline’s failure to deliver the 10 0 truckloads of cherries prom ised constitutes a breach of the contract and Shoreline had no grounds on which to refuse to fulfill the balance of cherries due under the contract. Pl.’s Mem . at 5-16. Defendants respond that no valid contract between Shoreline and Dell’s was ever form ed, and that even if it was, it was Dell’s that breached the contract, not Shoreline, thus justifying its refusal to m ake available the additional loads of cherries to Dell’s. Defs.’ Opp’n at 6-13.9 As an initial m atter, there is no question that a valid, enforceable contract between Dell’s and Shoreline existed. For a contract to exist there m ust be “a m anifestation of m utual assent sufficiently definite to assure that the parties are truly in agreem ent with respect to all m aterial term s.” Express Indus. & Term inal Corp. v. N.Y. State Dep’t. of Transp., 93 N.Y.2d 584, 589, 693 N.Y.S.2d 857, 715 N.E.2d 10 50 (1999). “Generally, courts look to the basic elem ents of the offer and the acceptance to determ ine whether there is an objective m eeting of the m inds sufficient to give rise to a binding and enforceable contract.” Id.; see also Leibowitz v. Cornell Univ., 584 F.3d 487, 50 7 (2d Cir. 20 0 9) (“To form a valid contract under New York law, there m ust be an offer, acceptance, consideration, m utual assent and intent to be bound.”). Further, with respect to contract form ation under the U.C.C., Section 2-20 4 provides: 9 The parties have also provided briefing on this issue, am ong others, in their papers in response to defendants’ m otion for sum m ary judgm ent. The Court has considered all of the parties’ argum ents. 13 (1) A contract for the sale of goods m ay be m ade in any m anner sufficient to show agreem ent, including conduct by both parties which recognizes the existence of such a contract. . . . (3) Even though one or m ore term s are left open a contract for sale does not fail for indefiniteness if the parties have intended to m ake a contract and there is a reasonably certain basis for giving an appropriate rem edy. “In a contract for a sale of goods, the essential term s are quantity, price, and tim e and m anner of delivery.” DiMare Hom estead, Inc. v. Alphas Co. of N.Y., Inc., No. 0 9 Civ. 6644 (PKC), 20 12 WL 1155133, at *24 (S.D.N.Y. Apr. 5, 20 12) (citation and internal quotation m arks om itted). The signed contract at issue here m anifests agreem ents as to all of these essential term s: the quantity and price was 10 0 truckloads of brine cherries at a price of 49 cents per pound; as for the tim e and m anner of delivery, the contract called for “shipm ent of 10 / loads per m onth average” and provided that shipping was to start “no later than October 15, 20 0 9 and continue for a 12 m onth period.” Am . Com pl. Ex. A. Moreover, the conduct of the parties dem onstrated their recognition of the existence of the contract: Dell’s picked up the first shipm ent of 20 0 9 cherries at Great Lakes on October 12, 20 0 9—before the contractual deadline of October 15, 20 0 9—and Shoreline continued to m ake loads available to Dell’s during the rest of 20 0 9 and into 20 10 . Pl.’s 56.1 ¶¶ 27-28.10 Defendants appear to contend that no contract was form ed because there was no m eeting of the m inds as to whether Dell’s had to provide Shoreline with shipping 10 Notably, defendants’ 56.1 Counterstatem ent acknowledges the existence of the contract. See Defs.’56.1 Opp’n ¶ 8 (adm itting Dell’s statem ent that “[o]n J uly 13, 20 0 9, Dell’s entered into a written contact with [Shoreline] to purchase one hundred truck loads of Michigan Brine Cherries (regulars) at 49 cents per pound”); Defs.’ 56.1 Opp’n ¶ 59 (“The Contract is the largest, m ost detailed agreem ent for the sale of cherries Shoreline has ever entered into.”). 14 containers, the m eaning of 10 loads per m onth average, and whether certain loads exported by Dell’s were covered by the contract, 11 Defs.’ Opp’n at 6-7; Defs.’ Mem . at 89, but this contention overlooks the fact that the U.C.C.’s standard for contract form ation is quite liberal and does not require every contractual term to be spelled out in detail, with precision, or even to be spelled out at all. See, e.g., N.Y.U.C.C. § 2-20 4(3), off. cm t. 3. (“If the parties intend to enter into a binding agreem ent, this subsection recognizes that agreem ent as valid in law, despite m issing term s, if there is any reasonably certain basis for granting a rem edy. The test is not certainty as to what the parties were to do nor as to the exact am ount of dam ages due the plaintiff. Nor is the fact that one or m ore term s are left to be agreed upon enough of itself to defeat an otherwise adequate agreem ent.”). Indeed, the New York Court of Appeals has em phasized, “[p]ractical business people cannot be expected to govern their actions with reference to nice legal form alism s. Thus, when there is basic agreem ent, however m anifested and whether or not the precise m om ent of agreem ent m ay be determ ined, failure to articulate that agreem ent in the precise language of a lawyer, with every difficulty and contingency considered and resolved, will not prevent form ation of a contract.” Kleinschm idt Div. of SCM Corp. v. Futuronics Corp., 41 N.Y.2d 972, 973, 395 N.Y.S.2d 151, 363 N.E.2d 70 1 (1977). Such basic agreem ent is m anifest in the contract and the parties’ subsequent 11 During the winter of 20 10 , Dell’s agreed to export cherries on behalf of Shoreline to growers in South Am erica; Dell’s purchased the cherries from Shoreline for $ .47 a pound and sold the cherries for $ .50 a pound to a Washington-based broker called Dovex that then exported them to South Am erica. Defs.’ 56.1 Ex. M (Mondella Dep.), at 20 8-11. The contract contains no provision regarding the export of cherries. 15 perform ance under it, and an enforceable agreem ent between Dell’s and Shoreline thus exists. Defendants’ next argum ent goes to Dell’s perform ance of its obligations under the contract; they contend that Dell’s breached the contract—and thus excused Shoreline’s non-perform ance—by: (1) failing to provide Shoreline with necessary containers to ship the cherries in; (2) refusing to purchase cherries under the contract unless Shoreline reduced the price; (3) taking unauthorized deductions from paym ents owed to Shoreline; and (4) on two occasions failing to m ake paym ent to Shoreline within the 30 -day paym ent tim e lim it while over the $ 130 ,0 0 0 credit lim it. Defs.’ Mem . at 9; Defs.’ Opp’n at 7-8. Even assum ing that these actions constitute uncured breaches of the contract by Dell’s, Shoreline’s right to be relieved from its obligations under the contract requires a dem onstration of a substantial im pairm ent to the contract as a whole. See, e.g., Em anuel Law Outlines, Inc. v. Multi-State Legal Studies, Inc., 899 F. Supp. 10 81, 10 87 (S.D.N.Y. 1995) (granting plaintiff’s m otion for sum m ary judgm ent on breach of contract claim where there was no evidence plaintiff’s failure to have goods prepared by prom ised date substantially im paired the value of entire contract). The parties do not dispute that the contract is an installm ent contract requiring or authorizing the delivery of goods in separate lots to be separately accepted pursuant to N.Y.U.C.C. § 2-612(1); nor do they dispute that § 2-612(3) applies. Pl.’s Mem . at 14; Defs.’ Opp’n at 11. That provision provides: Whenever non-conform ity or default with respect to one or m ore installm ents substantially im pairs the value of the whole contract there is a breach of the whole. But the aggrieved party reinstates the contract if he accepts a non-conform ing installm ent without seasonably notifying of 16 cancellation or if he brings an action with respect only to past installm ents or dem ands perform ance as to future installm ents. N.Y.U.C.C. § 2-612(3). This rule “is designed to further the continuance of the contract in the absence of an overt cancellation,” id. § 2-612(3), off. cm t. 6, and “precludes a party from canceling [a] contract for trivial defects.” Em anuel, 899 F. Supp. at 10 88. Shoreline’s right to cancel the entire agreem ent thus depends on whether Dell’s alleged breaches substantially im paired the value of the whole contract. See id.; see also 15 Williston on Contracts § 45-26 (4th ed. 20 0 0 ) (“[T]he seller m ust dem onstrate that the buyer’s breach, such as its failure to pay for one or m ore installm ents, substantially im paired the value of the whole contract in order for the seller to refuse to ship any rem aining installm ents and otherwise be relieved of its obligations under the contract.”). Although Shoreline points to several instances in which it contends Dell’s allegedly breached the contract, Defs.’ Opp’n at 7, it only contends that two of these breaches substantially im paired the entire contract, Defs.’ Opp’n at 11-12. Shoreline contends that Dell’s “refusal to supply shipping containers . . . constitutes a substantial im pairm ent of the Contract.” Defs.’ Opp’n at 12. The Court finds this argum ent unpersuasive. Although the contract certainly obligated Dell’s to provide som e of the shipping bins for the cherries, it did not obligate it to provide all of the bins. Am . Com pl. Ex. A (“[Dell’s] assures [Shoreline] that the trucks will be fully loaded with bins or barrels in bins with no charge for em pty bins. [Shoreline] to start using [Dell]’s containers when processing starts back up in August 20 0 9.” (em phasis added)). Even if it did, however, the record reveals that the parties did in fact use both Dell’s and Shoreline’s bins; Robert Reidy, Shoreline’s treasurer and secretary, acknowledged as 17 m uch. See Tata Decl. Ex. A (Reidy Dep.), at 52 (“Q. [D]uring the course of the contract, [Shoreline] used a com bination of both Dell’s and its own containers, correct? A. Yes.”); Pl.’s 56.1 ¶ 41. Accordingly, even if the contract obligated Dell’s to provide all of the bins, Shoreline’s acquiescence in the parties’ course of perform ance would am ount to a waiver of that term . See N.Y.U.C.C. § 2-20 8(3) (“[S]uch course of perform ance shall be relevant to show a waiver or m odification of any term inconsistent with such course of perform ance.”); see also Cassidy Podell Lynch, Inc. v. SnyderGeneral Corp., 944 F.2d 1131, 1147 (3d Cir. 1991) (buyer’s failure to pay for one installm ent of goods within 30 days of delivery as required by installm ent contract did not entitle seller to refuse to m ake rem aining shipm ents where, am ong other things, evidence of course of perform ance showed that the buyer regularly paid for goods up to 90 days after delivery); Petroleo Brasileiro S.A., Petrobras v. IBE Grp., Inc., No. 93 Civ. 330 5 (TPG), 1995 WL 32650 2, at *7 (S.D.N.Y. May 31, 1995) (buyer’s lateness in paying drafts and dem urrage charges did not substantially im pair the value of the whole contract and entitle seller to term inate contract in light of parties’ prior course of dealing in which buyer was often late in paying them ).12 12 Shoreline also argues that it withdrew any waiver of this term in a J uly 26, 20 10 m emorandum from Veliquette to Mondella stating that Dell’s “fail[ed] to provide containers” for shipping the cherries. Defs.’ Mem . at 9; Pl.’s 56.1 ¶ 39. But the record establishes that, after receiving this m em orandum , Dell’s com plied with the dem and. Mondella Decl. ¶ 20 ; Tata Decl. Ex. A (Reidy Dep.), at 60 (“Q. And the other condition was that Dell’s supply containers, correct? A. That I don’t recall, but that would m ake sense. It was part of the – yes. Q. And whatever conditions were im posed, Dell’s com plied with . . . with respect to the additional loads in August and Septem ber of 20 10 ? A. To m y knowledge.”). 18 Shoreline also contends Dell’s substantially im paired the contract when, according to Veliquette, Mondella told him during a phone call on April 1, 20 10 that Dell’s would only take delivery of an additional 35 loads under the contract, not the balance of 66 loads required to reach the 10 0 loads agreed upon. Defs.’ Opp’n at 11. Veliquette testified that during the roughly two and a half m inute call, when he asked Mondella how m any m ore loads of cherries he was going to take under the contract and suggested 35, Mondella told him that num ber was “about right.” Tata Decl. Ex. N (Veliquette Dep.), at 83; see also Veliquette Aff. ¶ 36 (“[W]hen Mondella told m e on April 1, 20 10 that Dell’s would only need thirty-five m ore loads, I began selling Shoreline’s inventory to other custom ers.”). The first m em orialization of this conversation was in a letter dated August 9, 20 10 from Veliquette to Mondella that provides in relevant part: It certainly appears that Dell’s has been purchasing cherries wherever you can get the best price, and as a result we have had to scram ble to find other purchasers to m itigate our dam ages for Dell’s failure to take the agreed upon volum e. In light of Dell’s breach of contract, I contacted you in April to determ ine what your intentions were. At that tim e, you indicated that you would probably only purchase an additional 35 loads. In spite of that assurance, Dell’s accepted only 3 loads in April, 6 loads in May, 9 loads in J une, and 2 loads in J uly. Veliquette Aff. Ex. FF (Aug. 9, 20 10 Letter), at 1.13 13 The contract did not require Dell’s to purchase cherries exclusively from Shoreline, Am . Com pl. Ex. A, and the record establishes that during the contract’s term , Dell’s bought cherries from sources other than Shoreline, som etim es at a price equal to or lower than $ .49 per pound. See, e,g., Mondella Decl. II ¶ 29 (“In J anuary 20 10 , Dell’s started purchasing cherries from [Traverse Bay Cherry Cooperative].”); Defs.’ 56.1 Ex. V (Dell’s spreadsheet indicating that during the term of the contract Dell’s purchased 19 Mondella rem em bers the conversation differently and testified that in response to Veliquette’s inquiry to him whether Dell’s was going to be able to take the rem ainder of the loads under the contract, he said that he would. Tata Decl. Ex L (Mondella Dep.), at 213, 217; see also Mondella Decl. II ¶ 30 (“In April 20 10 , I had a conversation with Dean Veliquette, in which I told him that Dell’s would take the full 10 0 loads under the Contract. At this tim e, there were approxim ately 70 loads left to fill. I com pletely disagree with Mr. Veliquette’s version of this discussion. I did not learn of Mr. Veliquette’s recollection of this conversation until m uch later when the parties were at issue.”). It thus appears that Mondella first learned of Veliquette’s recollection of the April conversation from Veliquette’s August 9, 20 10 letter to him . The substance of the April 1 conversation between Mondella and Veliquette is disputed. A reasonable jury could infer that Mondella told Veliquette that Dell’s did not intend to take the full balance of loads due under the contract, thus substantially im pairing the contract and relieving Shoreline from its obligations under it. In light of this factual dispute and because whether a breach of an installm ent contract “constitutes ‘substantial im pairm ent’ is a question of fact,” Em anuel Outlines, 899 F. Supp. at 10 87; see also Williston § 45:24 (“The question whether a nonconform ity [or default] . . . im pairs the value of the whole contract is, accordingly, one of fact, which will turn upon the particular circum stances in each case and, therefore, will ordinarily preclude cherries from com panies other than Shoreline at or lower than the contract price of $ .49 cents per pound). 20 sum m ary judgm ent.”), Dell’s m otion for sum m ary judgm ent on its breach of contract claim m ust be denied.14 2 . D e ll’s PACA Claim Dell’s also seeks sum m ary judgm ent on its PACA claim pursuant to 7 U.S.C. § 499b(2). “PACA was enacted in 1930 to regulate the interstate sale of perishable agricultural com m odities (essentially, fruits and vegetables).” Taylor & Fulton Packing, 20 11 WL 6329194, at *5. Section 499b(2) provides that it is unlawful “[f]or any dealer to . . . fail to deliver in accordance with the term s of the contract without reasonable cause any perishable com m odity bought or sold or contracted to be bought, sold, or consigned in interstate or foreign com m erce by such dealer.” 7 U.S.C. § 499b(2). 15 Dell’s argues sum m ary judgm ent is warranted on this claim for the sam e reason it was warranted on its breach of contract claim —Shoreline, a licensed PACA dealer, failed to provide it with the 10 0 truck loads of cherries due under the contract. Pl.’s Mem . at 17-18. However, because the U.C.C. “applies to sales of produce under PACA, ‘where PACA is silent as to 14 15 The Court does find it curious that after learning that Dell’s did not intend to take the full balance of loads under the contract, Shoreline did not dem and adequate assurances from Dell’s or in any way follow-up with Dell’s regarding Mondella’s statem ent. See N.Y.U.C.C. § 2-60 9(1) (“ When reasonable grounds for insecurity arise with respect to the perform ance of either party the other m ay in writing dem and adequate assurance of due perform ance and until he receives such assurance m ay if com m ercially reasonable suspend any perform ance for which he has not already received the agreed return.”). Also curious is the tim ing of Veliquette’s contention; it was not until August 9, 20 10 —about a week before Dell’s filed suit—that Veliquette first asserted that Mondella told him four m onths earlier Dell’s would take only 35 m ore loads. Veliquette Aff. Ex. FF. The term “perishable agricultural com m odity” specifically “[i]ncludes cherries in brine,” 7 U.S.C. § 499a(b)(4)(B), and it is undisputed that Shoreline constitutes a licensed “dealer” pursuant to 7 U.S.C. § 499a(b)(6), Pl.’s 56.1 ¶ 5. 21 a m aterial part of the transaction at issue[,]’” Genecco Produce, Inc. v. Sol Group Mktg. Co., No. 0 4 Civ. 6282 (CJ S), 20 0 6 WL 328385, at *4 (W.D.N.Y. Feb. 6, 20 0 6) (quoting Tray-Wrap, Inc. v. Meyer, No. 90 Civ. 7688 (DLC), 1994 WL 710 80 4 at *4 (S.D.N.Y. Dec. 20 , 1994)); Coosem ans Specialties, Inc. v. Gargiulo, 485 F.3d 70 1, 70 9 (2d Cir. 20 0 7) (applying N.Y.U.C.C. in PACA dispute), and because there are factual disputes as to whether Shoreline was entitled to term inate the contract under the U.C.C., see Part II.B.1. supra, Dell’s m otion for sum m ary judgm ent on its PACA claim is denied as well. 3 . Sh o re lin e ’s Bre ach o f Co n tract Co u n te rclaim s Dell’s next seeks sum m ary judgm ent with respect to Shoreline’s counterclaim s for breach of contract. Pl.’s Mem . at 18-19. Shoreline alleges a laundry list of breaches by Dell’s including failing to supply shipping containers; taking unauthorized deductions for freight charges from rem ittance m onies due Shoreline; and m aking short paym ents. Answer to Second Am ended Com plaint and Counterclaim dated J uly 22, 20 11 (“Answer”) ¶¶ 36-39 (Dkt. No. 54).16 Shoreline seeks dam ages of $ 32,259.0 0 on 16 To the extent Shorelines asserts individual breach of contract counterclaim s arising out of alleged breaches by Dell’s by (1) inform ing Shoreline that it would not com ply with the term s of the agreem ent; (2) failing to order the requisite quantities of produce; (3) failing and refusing to m ake tim ely or full paym ents; (4) and failing to tim ely issue purchase orders; and (5) failing to pick up orders in a tim ely fashion, Answer ¶¶ 32-35, 37, the Court deem s these claim s abandoned. Dell’s m oved for sum m ary judgm ent on all of Shoreline’s breach of contract counterclaim s yet Shoreline only addressed Dell’s alleged failure to provide shipping containers, taking unauthorized deductions, and failure to pay storage costs in its papers. See Defs.’ Opp’n at 16. “Federal courts m ay deem a claim abandoned when a party m oves for sum m ary judgm ent on one ground and the party opposing sum m ary judgm ent fails to address the argum ent in any way. Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 20 0 3). In any event, apart from the $ 32,259.0 0 that defendants claim is attributable to other contract breaches by Dell’s, Shoreline alleges no dam ages it allegedly suffered as a 22 these counterclaim s, Answer ¶ 40 , an am ount representing $ 3,367.0 0 in unauthorized deductions by Dell’s from m onies owed to Shoreline, $ 11,672.0 0 in short paym ents in which Dell’s allegedly paid Shoreline less than the contractual rate of $ .49 per pound, and $ 17,220 .0 0 in unpaid bin rental fees. Veliquette Aff. ¶¶ 52-54; Defs.’ Opp’n at 16. Dell’s m otion for sum m ary judgm ent on Shoreline’s bin rental fee breach of contract claim is granted. The contract contains no provision regarding bin rental fees, and Veliquette acknowledged as m uch during his deposition. See Tata Decl. Ex. C (Veliquette Dep.), at 58 (“Q. . . . It doesn’t say you get a bin rental fee, does it? A. You’re correct.”); id. Ex. C (Veliquette Dep.), at 126 (“Q. But the contract you now adm itted has no bin rental fee in it, does it? A. That’s right.” So you were not entitled to a two and a half cent per pound bin rental fee, were you? A. There was a—based on the contract, no.”). As for Shoreline’s short paym ent claim , there was no breach of the contract because the record establishes that Shoreline agreed to the price Dell’s paid during the period at issue from March 20 10 through J uly 20 10 . Pl.’s 56.1 ¶¶ 50 -51. Indeed, in a J uly 26, 20 10 m em orandum to Mondella, Veliquette acknowledges that Shoreline “lowered the price temporarily to $ .47/ pound.” Defs.’ 56.1 Ex. R. Additionally, though Shoreline m aintains that these price reductions were predicated on Dell’s paying return freight charges for the cherries, it points to no evidence that establishes the parties cam e to any agreem ent with respect to the term s under which the price would be reduced.17 result of these breaches. Indeed, the counterclaim allegations with respect to breach of contract are altogether conclusory. 17 Shorelines points to a Novem ber 20 , 20 0 9 em ail from a Dell’s em ployee to Shoreline suggesting that the parties speak about a price reduction in exchange for 23 However, sum m ary judgm ent is denied as to Shoreline’s breach of contract claim based on Dell’s taking $ 3,367.0 0 in unauthorized freight deductions from Shoreline invoices. The contract provides that Shoreline agreed “to pay freight on bins and barrel return.” Am Com pl. Ex. A. However, because Shoreline refused to pay certain freight charges for the return of Dell’s bins to Great Lakes, see, e.g., Tata Decl. Ex. C (Veliquette Dep.), at 463-64; Tata Decl. II Ex. U (Hicks Dep.), at 65-67 & Ex. 13, Dell’s paid the freight charges on Shoreline’s behalf, and deducted $ 7,70 0 from certain paym ents to Shoreline to cover the cost. Mondella Decl. ¶ 35. Shoreline “has acknowledged that it owed Dell’s $ 4,333 of this $ 7,70 0 , but there is still $ 3,367 in dispute.” Pl.’s Mem . at 13; see also Tata Decl. Ex. A (Reidy Dep.), at 90 (“Q. And based on this calculation, Shoreline fruit determined that Dell’s owed . . . Shoreline Fruit $ 3,367.0 0 , correct? A. That’s correct.”); Mondella Decl. ¶ 35 (“[T]here is still $ 3,367.0 0 in dispute.”). In light of this factual dispute as to Shoreline’s entitlem ent to these funds, Dell’s m otion for sum m ary judgm ent as to this claim is denied. In sum , sum m ary judgm ent is denied as to the breach of contract counterclaim prem ised on Dell’s allegedly unauthorized deductions for freight and granted as to the rem ainder of the breach of contract counterclaim s.18 4 . Sh o re lin e ’s PACA Co u n te rcla im s Shoreline’s PACA counterclaim s are based on Dell’s alleged failure to pay Shoreline PACA trust funds in violation of 7 U.S.C. § 499e, Answer ¶ 30 , and its failure Dell’s paying return freight, Veliquette Aff. Ex. CC, but the record is devoid of any evidence that the parties actually agreed upon such a term . 18 Shoreline’s m otion for sum m ary judgm ent on its breach of contract counterclaim s is therefore denied as well. 24 to issue purchase orders for the cherries Shoreline allegedly set aside for it in violation of 7 U.S.C. § 499b(2).19 As an initial m atter, sum m ary judgm ent is denied as to Shoreline’s unfair conduct counterclaim . Shoreline’s theory appears to be that Dell’s violated § 499b(2) 20 when it failed “to order ten loads per m onth as required by the Contract, and [by] expressly inform ing Shoreline in April 20 10 that would only order thirty-five loads for the balance of the Contract.” Defs.’ Mem . at 25. Although it is clear the contract did not require Dell’s to purchase 10 loads a m onth but instead “10 loads per m onth average,” Am . Com pl. Ex A (em phasis added), m eaning that on any given m onth Dell’s could order m ore or less than 10 loads, sum m ary judgm ent on the claim m ust be denied in light of the factual dispute as to whether Mondella on April 1, 20 10 told Veliquette that he did not intend to take the full 10 0 loads under the contract. As for Shoreline’s PACA trust counterclaim , Dell’s argues sum m ary judgm ent is warranted because it is undisputed Shoreline never invoked PACA’s statutory trust 19 The Court will refer to the counterclaim brought under 7 U.S.C. § 499e as the “PACA trust counterclaim ” and the counterclaim brought under 7 U.S.C. § 499b(2) as the “PACA unfair conduct counterclaim .” 20 Section 499b(2) provides that it is unlawful “[f]or any dealer to reject . . . in accordance with the term s of the contract without reasonable cause any perishable com m odity bought or sold or contracted to be bought, sold, or consigned in interstate or foreign com m erce by such dealer.” 7 U.S.C. § 499b(2). “Reject without reasonable cause” m eans “(1) [r]efusing or failing without legal justification to accept produce within a reasonable tim e; (2) advising the seller, shipper, or his agent that produce, com plying with contract, will not be accepted; (3) indicating an intention not to accept produce through an act or failure to act inconsistent with the contract; or (4) any rejection following an act of acceptance.” 7 C.F.R. § 46.2(bb). 25 provisions by invoicing Dell’s for the trust funds it seeks. Pl.’s Mem . at 19. The Court agrees. Under PACA’s trust provisions, “produce sellers becom e the beneficiaries of a constructive, statutory trust that lasts until they get paid. This trust consists of all produce-related assets, including produce inventory, receipts, and accounts receivable.” Taylor & Fulton, 20 11 WL 6329194, at *5 (citations om itted). As a PACA trustee, “a produce buyer is charged with a duty ‘to ensure that it has sufficient assets to assure prom pt paym ent for produce and that any beneficiary under the trust will receive full paym ent.’” Coosem ans, 485 F.3d at 70 5 (quoting D.M. Rothm an & Co. v. Korea Com m er. Bank of N.Y., 411 F.3d 90 , 94 (2d Cir. 20 0 5)). The buyer has a “fiduciary obligation under PACA to repay the full am ount of the debt owed to the PACA beneficiary.” C.H. Robinson Co. v. Alanco Corp., 239 F.3d 483, 488 (2d Cir. 20 0 1). Under the statute, the trust is form ed at the m om ent the buyer receives the produce and rem ains in effect until the seller is paid in full. See 7 C.F.R. § 46.46(c)(1); In re Kornblum & Co., 81 F.3d 280 , 286 (2d Cir. 1996). However, to establish the existence of a PACA trust, a num ber of prerequisites m ust be m et: [T]he seller m ust dem onstrate that: (1) the com m odities sold were perishable agricultural com m odities; (2) the purchaser of the perishable agricultural com m odities was a com m ission m erchant, dealer or broker; (3) the transaction occurred in interstate or foreign com m erce; (4) the seller has not received full paym ent on the transaction; and (5) the seller preserved its trust rights by giving written notice to the purchaser of its intention to do so. Taylor & Fulton, 20 11 WL 6329194, at *5 (citations om itted). At issue here is the fifth prerequisite. Although am ong the threadbare allegations in Shoreline’s counterclaim , is that it “preserved its interest in the PACA trust by 26 sending invoices to Plaintiff containing the language required by 7 U.S.C. § 499e(c)(4),”21 Answer ¶ 28, there is no evidence in the record that Shoreline did so. In support of its contention, Shoreline points to an invoice dated August 12, 20 10 for cherries that it allegedly was not paid for an d that contains the required language from § 499e(c)(4), Defs.’ Opp’n at 17, but the record is devoid of evidence that this invoice was in fact sent to Dell’s. Mondella Decl. ¶ 45 (“[Shoreline] has never invoiced Dell’s the am ount of $ 11,672 to recoup the price deduction.”). J oanna Hicks, the Great Lakes em ployee responsible for preparing the invoices, testified that she didn’t recall whether the invoice was sent to Dell’s. Third Declaration of Robert Tata dated May 4, 20 12 Ex. Q (Hicks Dep.), at 84 (Dkt. No. 94). The sam e is true of Robert Reidy, Shoreline’s treasurer and secretary. Tata Decl. Ex. A (Reidy Dep.), at 95. Moreover, Veliquette testified that Dell’s paid Shoreline for all cherries that it provided under the contract. Tata Decl. Ex. C (Veliquette Dep.), at 488. Accordingly, because there is no evidence in the record that Shoreline has preserved its PACA trust rights, its PACA trust claim fails 21 7 U.S.C. § 499e(c)(4) provides, in part: a licensee m ay use ordinary and usual billing or invoice statem ents to provide notice of the licensee’s intent to preserve the trust. The bill or invoice statem ent m ust include the inform ation required by the last sentence of paragraph (3) and contain on the face of the statem ent the following: “The perishable agricultural com m odities listed on this invoice are sold subject to the statutory trust authorized by section 5(c) of the Perishable Agricultural Com m odities Act, 1930 (7 U.S.C. 499e(c)). The seller of these com m odities retains a trust claim over these com m odities, all inventories of food or other products derived from these com m odities, and any receivables or proceeds from the sale of these com m odities until full paym ent is received.”. [sic] 27 as a m atter of law and Dell’s m otion for sum m ary judgm ent on the claim is therefore granted. In sum , Dell’s m otion for sum m ary judgm ent is granted as to Shoreline’s PACA trust counterclaim and denied as to its PACA unfair conduct counterclaim .22 5. Sh o re lin e ’s Im p racticability D e fe n s e Dell’s next seeks sum m ary judgm ent on Shoreline’s defense that its perform ance under the contract was excused on im practicability grounds pursuant to N.Y.U.C.C. § 2615. Pl.’s Mem . at 16-17. Shoreline contends it was excused from providing the balance of cherries due under the contract because it did not have the capacity to fulfill the orders and argues that “Dell’s dem ands would have overwhelm ed Shoreline’s lim ited storage and processing capacity, . . . .” Defs.’ Opp’n at 14. Section 2-615 provides in part: (a) Delay in delivery or non-delivery in whole or in part by a seller who com plies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if perform ance as agreed has been m ade im practicable by the occurrence of a contingency the non-occurrence of which was a basic assum ption on which the contract was m ade or by com pliance in good faith with any applicable foreign or dom estic governm ental regulation or order whether or not it later proves to be invalid. (b) Where the causes m entioned in paragraph (a) affect only a part of the seller's capacity to perform , he m ust allocate production and deliveries am ong his custom ers but m ay at his option include regular custom ers not then under contract as well as his own requirem ents for further m anufacture. He may so allocate in any m anner which is fair and reasonable. (c) The seller m ust notify the buyer seasonably that there will be delay or non-delivery and, when allocation is required under paragraph (b), of the estim ated quota thus m ade available for the buyer. 22 Shoreline’s m otion for sum m ary judgm ent on its PACA counterclaim s is therefore denied as well. 28 N.Y.U.C.C. § 2-615. This section “requires a breaching seller to show (1) a contingency (2) the im practicability of perform ance as a consequence of the occurrence of that contingency, and (3) that the nonoccurrence of the contingency was a basic assum ption of the contract.” Canusa Corp. v. A & R Lobosco, Inc., 986 F. Supp. 723, 731 n.6 (E.D.N.Y. 1997) (citation om itted). Official Com m ent 4 to this section explains the circum stances under which § 2-615 m ay be properly invoked: “a severe shortage of raw m aterials or of supplies due to a contingency such as war, em bargo, local crop failure, unforeseen shutdown of m ajor sources of supply or the like, which either causes a m arked increase in cost or altogether prevents the seller from securing supplies necessary to his perform ance, is within the contem plation of this section.” § 2-615, off. cm t. 4. Although Shoreline m akes reference to Section 2-615’s standard, it fails to articulate how it has satisfied each of its elem ents. And its assertion that it did not have the capacity to fulfill Dell’s orders is plainly belied by the record; it is undisputed Shoreline had the cherries in inventory to provide Dell’s with the balance of them due under the contract. Veliquette testified as follows: Q. Let’s just break it down. A. I had to reject the [Dell’s] purchase orders. I couldn’t—I had to reject them . We had other POs that he had issued earlier that hadn’t been filled. Q. Is it your position you just didn’t have enough fruit? Your testim ony yesterday indicated your—in August I think you had dozens of brine pits full of fruit. You had a warehouse with a m illion pounds of fruit in it then; isn’t that correct? A. We did. Q. So you had tons of fruit to satisfy this. A. The availability of the fruit was never the issue. 29 Tata Decl. Ex. C (Veliquette Dep.), at 435; see also id. Ex. C (Veliquette Dep.), at 444 (“And if you wanted to . . . you could have used the cherries that were overflowing at your warehouse and in your 32 brine pits to satisfy Arthur Mondella’s contract at Dell’s? . . . A. We had the—we had the cherries.”). Cullim ore provided sim ilar testim ony. See Tata Decl. Ex. D (Cullim ore Dep.), at 58-59 (“Q. [B]etween the cherries in the pit that you could process and the stored cherries that you had in the plant, do you believe you had enough cherries to fulfill the Dell’s contract as of May or J une 20 10 ? . . . A. Yes.”). Indeed, during the period, Shoreline’s sales of brine cherries to other custom ers—at a higher price than the contract price with Dell’s—continued unabated. See, e.g., Tata Decl. Ex. A (Reidy Dep.), at 30 -34. Accordingly, because Shoreline cannot establish that it can m aintain its com m ercial im practicability defense, Dell’s m otion for sum m ary judgm ent on it is granted. In sum , Dell’s m otion for sum m ary judgm ent is DENIED as to (1) its breach of contract claim ; (2) its PACA claim ; (3) Shoreline’s unfair conduct PACA counterclaim ; and (4) Shoreline’s breach of contract claim prem ised on Dell’s allegedly unauthorized deductions for freight. Dell’s m otion is GRANTED as to (1) the rem ainder of Shoreline’s breach of contract counterclaim s; (2) Shoreline’s PACA trust counterclaim s; and (3) and Shoreline’s com m ercial im practicability defense. C. Sh o re lin e ’s Mo tio n fo r Su m m ary Ju d gm e n t The Court next turns to Shoreline’s m otion for sum m ary judgm ent on Dell’s claim s and its own counterclaim s. The Court addresses each claim and counterclaim below. 1. D e ll’s Bre ach o f Co n tract an d PACA Claim s 30 As discussed in Part II.B.1.-2. supra, there are disputed issues of m aterial fact as to Dell’s willingness to perform under the term s of the contract and thus whether Shoreline was entitled to cancel it. Shoreline’s m otion for sum m ary judgm ent on Dell’s breach of contract and PACA claim s is thus denied. 2 . D e ll’s Claim fo r D am age s Pu rs u an t to U .C.C. §§ 2 -711, 2 -712 , 2 -715 Defendants next seek sum m ary judgm ent with respect to Dell’s claim for “cover,” incidental, and consequential dam ages under the U.C.C., contending that even assum ing Shoreline breached the contract, Dell’s has failed to satisfy the prerequisites to recover under these theories. Defs.’ Mem . at 14. Section 2-711 of the U.C.C. provides an aggrieved buyer with a num ber of options where, as here, “the seller fails to m ake delivery or repudiates.” One of those options is allows the buyer to “‘cover’ and have dam ages under [Section 2-712] as to all the goods affected. . . .” N.Y.U.C.C. § 2-711(1)(a). Section 2-712 defines “cover” as the “m aking in good faith and without unreasonable delay an y reasonable purchase of or contract to purchase goods in substitution for those due from the seller.” Id. § 2-712(1). Section 2-712(2) explains that, after purchasing the substitute goods, the aggrieved buyer m ay obtain cover dam ages—the difference between the cost of the substitute goods and the subject contract price—along with any incidental and consequential dam ages “less expenses saved in consequence of the seller’s breach.” Id. § 2-712(2), 2-713(1). Incidental dam ages include, am ong other things, “any com m ercially reasonable charges, [or] expenses incident” to the breach, and “[c]onsequential dam ages resulting from the seller’s breach include (a) any loss resulting from general or particular requirem ents and needs of which the seller at the tim e of contracting had 31 reason to know and which could not reasonably be prevented by cover or otherwise; . . . .” Id. § 2-715(1)-(2). Consequential dam ages, the New York Court of Appeals has explained, “are restricted to those dam ages which were reasonably foreseen or contem plated by the parties during their negotiations or at the tim e the contract was executed.” Kenford Co. v. County of Erie, 73 N.Y.2d 312, 321, 540 N.Y.S.2d 1, 5 (1989). Shoreline contends Dell’s is not entitled to cover dam ages and thus that sum m ary judgm ent is warranted because Dell’s cover purchases of cherries from Kum iniano at price of $ 1.0 2 per pound were neither m ade in good faith, nor reasonable, nor m ade without unreasonable delay. Defs.’ Mem . at 14. But determ inations as to the reasonableness of the parties’ actions or their good faith are generally questions of fact for the jury, not the Court, and thus cannot be decided on sum m ary judgm ent. Cf. Capital, S.A. v. Lexington Capital Funding III, Ltd., No. 10 Civ. 25 (PGG), 20 11 WL 3251554, at *11 (S.D.N.Y. J uly 28, 20 11) (collecting cases and noting that “[w]hether a party to a contract acted in good faith, however, generally presents a question of fact for a jury”); Feinberg v. Katz, No. 0 1 Civ. 2739 (CSH), 20 0 7 WL 4562930 , at *11 (S.D.N.Y. Dec. 21, 20 0 7) (“Whether a party acted with objective reasonableness is a quintessential com m on law jury question.” (citation and quotation m arks om itted)). In any event, fact questions abound. First, there is com peting testim ony with respect to bad faith. Shoreline contends Mondella on April 1, 20 10 told Veliquette that Dell’s would only be taking delivery of 35 m ore loads but subsequently sent Shoreline purchase orders for the rem aining balance of cherries due under the contract; actions, Shoreline m aintains, suggest “any purchase of cherries from a source other than Shoreline for the purported purpose of cover was done in bad faith.” Defs.’ Mem . at 15. Mondella testified that he 32 said no such thing and that when Veliquette asked him whether he would take the rem ainder of the loads under the contract, he said that he would. Tata Decl. Ex L (Mondella Dep.), at 213, 217. There are also factual disputes about the reasonableness of the price Dell’s paid for the Kum iniano cherries. Com pare Defs.’ Mem . at 15 (“In light of the prevailing m arket for com parable cherries, it was unreasonable for Dell’s to pay $ 1.0 2 per pound and expect Shoreline to cover the difference.”) 23 and Veliquette Reply Aff. Ex. B (Expert Report of Allen Steim el), at 4 (“The Bulgarian [Kum iniano] stem -on cherries should not be used as a m easure of price to replace the cherries supplied by Shoreline because they are norm ally priced well above regulars.”), with Tata Decl. II Ex. X (Expert Report of Allan Corradi), at 7 (“Dell’s cover price of $ 1.0 2 per pound of cherries (delivered) during the Fall of 20 10 was com m ercially reasonable at that tim e . . . .”). The sam e is true with respect to the tim ing of the cover purchases; the parties dispute whether Dell’s purchase of the cherries in Septem ber was reasonable. Com pare Defs.’ Mem . at 16 (“After Septem ber 13, 20 10 , presum ably the period when Dell’s needed the additional fifty-four loads of fruit, its purchases of cherries from other sources was sporadic at best.”), with Mondella Decl. II ¶ 42 (“Dell’s realized once and for all in Septem ber 20 10 that [Shoreline] sim ply was not going to provide Dell’s with the balance of the cherries, despite Dell’s filing a lawsuit. At this tim e, Dell’s had no choice but to cover.”). Shoreline also contends sum m ary judgm ent is warranted on Dell’s claim for incidental and consequential dam ages pursuant to N.Y.U.C.C. § 2-715. It argues Dell’s 23 Defendants do not cite to their 56.1 Statem ent or any evidence in support of this assertion but presum ably rely upon paragraphs 29 and 30 of their 56.1 Statem ent. Defs.’ 56.1 ¶¶ 29-30 (discussing range in prices of cherries in brine purchased by Dell’s). 33 claim for incidental dam ages is not warranted for the sam e reasons it argues that the cover was untim ely, m ade in bad faith, and un reasonable. Defs.’ Mem . at 16 (“For the reasons set forth above, Dell’s cover was not com m ercially reasonable, and therefore incidental dam ages m ust be disallowed.”). In light of the fact questions discussed above with respect to the reasonableness of Dell’s cover purchases, the Court rejects this contention, and Shoreline’s m otion for sum m ary judgm ent as to Dell’s claim for incidental dam ages is denied. However, the Court grants defendants’ m otion for sum m ary judgm ent as to Dell’s claim for consequential dam ages. Dell’s seeks consequential dam ages in its second am ended com plaint, Am . Com pl. ¶¶ 40 -41, but the specific nature of the consequential dam ages it seeks is unclear. Dell’s has not identified any dam ages it considers to be consequential and thus cannot m ake the required showing that the dam ages “were fairly within the contem plation of the parties to the contract at the tim e it was m ade.” Kenford, 73 N.Y.2d at 321 (consequential dam ages unavailable where there was no provision in contract providing for them and no evidence in record that they were within contem plation of parties prior to or at tim e of contracting). 24 Accordingly, Shoreline’s m otion for sum m ary judgm ent as to Dell’s entitlem ent to consequential damages pursuant to Section 2-715 is granted. In sum , defendants’ m otion for sum m ary judgm ent is denied as to Dell’s claim for cover and incidental dam ages and granted as to Dell’s claim for consequential dam ages. 24 In any event, Dell’s does not address Shoreline’s argum ent as to consequential dam ages in its papers. Dell’s Mem orandum of Law in Opposition to Defendants’ Motion for Sum m ary J udgm ent dated Apr. 27, 20 12 (“Pl.’s Opp’n”) at 21-23 (Dkt. No. 85). 34 3 . D e ll’s Claim fo r Bre ach o f th e Co ve n an t o f Go o d Faith an d Fair D e alin g Sum m ary judgm ent is also granted as to Dell’s claim for breach of the covenant of good faith and fair dealing. Dell’s has not opposed Shoreline’s m otion as to this claim , and the Court therefore deem s the claim abandoned. See, e.g., Taylor, 269 F. Supp. 2d at 265. In any event, the claim is duplicative of Dell’s breach of contract claim ; “New York law does not . . . recognize a separate cause of action for breach of the im plied covenant of good faith and a breach of contract on the sam e facts.” Fellows v. CitiMortgage, Inc., 710 F. Supp. 2d 385, 40 7 (S.D.N.Y. 20 10 ) (citing N.Y. Univ. v. Continental Ins. Co., 87 N.Y.2d 30 8, 639 N.Y.S.2d 283, 662 N.E.2d 763, 770 (1995)). 4 . D e ll’s Claim fo r Co n s p iracy an d To rtio u s In te rfe re n ce W ith Co n tract Defendants next m ove for sum m ary judgm ent on Dell’s claim s for conspiracy and tortious interference with contract against Great Lakes, Cherries-R-Us, and Cherry Ke. Defs.’ Mem . at 19, 22.25 “New York does not recognize an independent tort of conspiracy.” Kirch v. Liberty Media Corp., 449 F.3d 388, 40 2 (2d Cir. 20 0 6) (citing Alexander & Alexander of N.Y., Inc. v. Fritzen, 68 N.Y.2d 968, 969, 510 N.Y.S.2d 546, 547, 50 3 N.E.2d 10 2 (1986)). Instead, a civil conspiracy claim m ust be prem ised on an independent 25 Dell’s has not alleged a claim of tortious interference with prospective contractual relations, so the Court need not address Shoreline’s argum ents with respect to it. A valid enforceable contract between Shoreline and Dell’s exists, so even if the claim were alleged, it would not be cognizable in any event. See, e.g., Gortat v. Capala Bros., Inc., No. 0 7 Civ. 3629 (ILG) (SMG), 20 11 WL 6945186, at *4, 6 (E.D.N.Y. Dec. 30 , 20 11) (tortious interference with prospective contractual relations claim only available in absence of contract). 35 underlying tort—any “unlawful” act, or a “lawful” act done “in an unlawful m anner,” Arlinghaus v. Ritenour, 622 F.2d 629, 639 (2d Cir. 1980 ) (citation om itted)—here, Dell’s claim against Great Lakes, Cherry Ke, and Cherries-R-Us for tortious interference with contractual relations. Accordingly, to establish a civil conspiracy claim , a plaintiff m ust dem onstrate the underlying tort plus three elem ents: (1) a corrupt agreem ent; (2) an overt act in furtherance of that agreem ent; and (3) m em bership in the conspiracy by each defendant. Cofacredit v. Windsor Plum bing Supply Co., 187 F.3d 229, 240 (2d Cir. 1999). “As is true in crim inal conspiracies, agreem ents in civil conspiracies will not easily be shown by direct evidence, but m ay be inferred from circum stantial evidence.” Cofacredit S.A. v. Windsor Plum bing Supply Co., 187 F.3d 229, 240 (2d Cir. 1999). A claim of tortious interference with contract “requires the existence of a valid contract between the plaintiff and a third party, defendant’s knowledge of that contract, defendant’s intentional procurem ent of the third-party’s breach of the contract without justification, actual breach of the contract, and dam ages resulting therefrom .” Lam a Holding Co. v. Sm ith Barney, 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370 (1996). “[T]o be actionable, the interference m ust be intentional and not incidental to som e other lawful purpose.” Heath-Chem Corp. v. Baker, 915 F.2d 80 5, 80 9 (2d Cir. 1990 ) (citing Alvord & Swift v. Stewart M. Muller Constr. Co., 385 N.E .2d 1238, 1241, 46 N.Y.2d 276, 281 (1978)). Actions taken to protect an econom ic interest cannot give rise to a tortious interference with contract claim . Foster v. Churchill, 87 N.Y.2d 744, 750 -51, 642 N.Y.S.2d 583, 665 N.E.2d 153 (1996). However, a plaintiff can overcom e the “econom ic justification” affirm ative defense by establishing that the defendant was “m otivated by m alice or em ployed illegal m eans to safeguard its interest.” Id. at 750 . 36 Apart from the contention that no valid contract between Dell’s and Shoreline existed—a contention the Court has already considered and rejected—defendants argue sum m ary judgm ent on Dell’s tortious interference claim is required because there is no evidence in the record to support it. Defs.’ Mem . at 20 (“A further insurm ountable barrier to Dell’s tortious interference claim is the absence of any evidence supporting it.”). Further, sum m ary judgm ent on Dell’s conspiracy claim is required, defendants m aintain, because Dell’s has provided no evidence of a corrupt agreem ent am ong defendants or any overt act taken by defendants in furtherance of such an agreem ent. Defs.’ Mem . at 22-23. Dell’s responds, am ong other things, that there is am ple evidence in the record to create an issue of fact as to whether Great Lakes, Cherries-R-Us, and Cherry Ke, acting through Veliquette, agreed to and did intentionally procure Shoreline’s breach of the contract. Pl.’s Opp’n at 23-28. In light of the interwoven nature of the relationship am ong Great Lakes, Cherries-R-Us, Cherry Ke, Shoreline, and Veliquette—who was intim ately involved in the operations of all of the entities—the Court agrees that a reasonable juror could draw such an inference. For exam ple, the record establishes that Veliquette, Shoreline’s president and the contract’s drafter, is also the President of Cherries-R-Us and the Vice President and Chairm an of the Board of Cherry Ke—a com pany wholly owned by Cherries-R-Us that also shares office space with it—and the contract was typed up by Cherry Ke’s office m anager and faxed from Cherry Ke’s offices to Dell’s. Tata Decl. Ex. C (Veliquette Dep.), at 39; Tata Decl. II Ex. B (Veliquette Dep.), at 32-33; Veliquette Aff. ¶ 10 . Veliquette testified that he m ade calls regarding the contract, sent faxes regarding the contract, and 37 received em ails regarding the contract from Cherry Ke. Tata Decl. II Ex. A (Veliquette Dep.), at 83-84, 87, 92. Further, he acknowledged during his deposition that he sent the J uly 21, 20 10 m em orandum to Dell’s regarding the Shoreline and Dell’s contract dispute from Cherry Ke’s offices. Id. Ex. A (Veliquette Dep.), at 86-87. The record also establishes that Veliquette is a board m em ber of Great Lakes, and that its president is his brother J on Veliquette. Tata Decl. II Ex. D (Cullim ore Dep.), at 19. It likewise establishes that in his role as a board m em ber at Great Lakes, Veliquette often would m ake decisions regarding the release of cherries to particular custom ers. Id. Ex. D, at 21. Indeed, Trudy Cullim ore, Veliquette’s sister and Great Lakes’ 30 (b)(6) witness, testified that she took “orders” from Veliquette as to whom to deliver cherries to. Id. Ex. D, at 59 (“Q. Now, you say you just took orders from Dean with respect to who to deliver cherries to and who not to deliver cherries to; is that correct? A. Correct.”). She also testified that even after Dell’s insisted that Shoreline fulfill the contract, Veliquette told her to deliver cherries that that would have satisfied Dell’s contract to others. Id. Ex. D, at 59-60 (“Q. And during the sum m er of 20 10 , after Dean and you knew that Dell’s was insisting that the contract be fulfilled, were there tim es when Dean told you to deliver cherries that would satisfy the Dell’s contract to other com panies besides Dell’s? A. Yes.”). All of this evidence is sufficient to create a fact question for the jury as to whether Great Lakes, Cherries-R-Us, and Cherry Ke through Veliquette agreed to and did cause Shoreline to breach the contract. As Dell’s aptly notes: “[t]here is no dispute that Dean Veliquette was m aking all of the decisions regarding [Shoreline’s] Contract with Dell’s. The issue for the jury is what ‘hat’ Dean 38 Veliquette was wearing when he directed the breach of the Contract.” Pl.’s Opp’n at 25.26 With respect to Dell’s tortious interference claim , defendants’ argum ent that the econom ic interest defense applies to them is m isplaced. Even assum ing defendants did not waive the defense by failing to put it in their answer, the defense is inapplicable because it only applies when the alleged interfering parties have acted to protect their interest in the breaching party’s business—here, Shoreline’s—not their own. See, e.g., UMG Recordings, Inc. v. Escape Media Grp., Inc., — N.Y.S.2d —, 20 12 WL 2847859, at *10 (N.Y. Sup. Ct. 20 12) (“[A] party acting in its own direct interest, rather than to protect its stake in the breaching party, m ay not raise the econom ic interest defense.” (citing Wells Fargo Bank, N.A. v. ADF Operating Corp., 50 A.D.3d 280 , 281, 855 N.Y.S.2d 68 (1st Dep’t 20 0 8)); cf. White Plains Coat & Apron Co., Inc. v Cintas Corp., 8 N.Y.3d 422, 426, 835 N.Y.S.2d 530 (20 0 7) (“In response to [a contract interference] claim , a defendant m ay raise the econom ic interest defense—that it acted to protect its own legal or financial stake in the breaching party’s business.” (em phasis added)).27 26 27 Defendants’ argum ent that Dell’s conspiracy claim should be dism issed because it “can offer no proof in adm issible form of an agreem ent to com m it conspiracy, or of any acts taken in furtherance thereof,” Defs.’ Reply at 11, is unpersuasive. Each of the defendants was acting through Veliquette, and, as discussed above, there are fact questions with regard to the nature of the relationship between Veliquette, Great Lakes, Cherry Ke, and Cherries-R-Us and whether that relationship could be regarded as a “corrupt agreem ent.” Additionally, m any of the actions taken by Veliquette on behalf of Great Lakes, Cherry Ke, and Cherries-R-Us could be regarded as acts in furtherance of that agreem ent. Defendants appear to rely on Don King Prods., Inc. v. Sm ith, 47 F. App’x 12, 15 (20 0 2) (sum m ary order) in support of a different proposition—that to invoke the econom ic interest defense “it was sufficient that [a defendant] was acting to protect its 39 Defendants acknowledge that any alleged interference would be in their own interests, not those of Shoreline: [I]f Dell’s were perm itted to force Shoreline to deliver fifty-four purchase orders in one m onth, Great Lakes would be forced to work day and night, and run it’s [sic] m achinery and em ployees to the brink of ruin and exhaustion, if it had any hope, however false, of fulfilling those orders. Sim ilarly, Cherries R Us would have been forced to allow Shoreline to use the m ore expensive 20 10 harvest with which to satisfy Dell’s purchase of cherries from the $ .49 per pound crop of 20 0 9. Such an outcom e would be financially ruinous to those com panies, justifying any alleged interference with the Contract. See Defs.’ Mem . at 20 .28 In sum , defendants’ m otion for sum m ary judgm ent as to Dell’s conspiracy and tortious interference with contractual relations claim s is denied. III. CON CLU SION For all of the foregoing reasons, Dell’s m otion for sum m ary judgm ent is DENIED as to (1) its breach of contract claim ; (2) its PACA claim ; (3) Shoreline’s unfair conduct PACA counterclaim ; and (4) Shoreline’s breach of contract claim prem ised on Dell’s allegedly unauthorized deductions for freight. Dell’s m otion is GRANTED as to (1) the rem ainder of Shoreline’s breach of contract counterclaim s; (2) Shoreline’s PACA trust counterclaim s; and (3) and Shoreline’s com m ercial im practicability defense. own econom ic interest in that breaching party.” This case is unpublished and of no precedential value. See White Plains Coat & Apron Co., Inc. v. Cintas Corp., 460 F.3d 281, 288 n.1 (2d Cir. 20 0 6) (“The district court relied for authority on a sum m ary order of this Court, see Don King Prods., Inc. v. Sm ith, 47 Fed. Appx. 12, 15 (2d Cir. 20 0 2) . . . which should not have been cited as precedential authority.”). It also pre-dates the New York Court of Appeals decision in White Plains, which confirm ed the scope of the econom ic interest defense. See White Plains, 8 N.Y.3d at 426. Accordingly, to the extent defendants rely on Don King in support of the contention that for the econom ic interest defense to apply they need only to be acting in their own econom ic interest, the Court disagrees. 28 Defendants cite to no record evidence in support of these assertions. 40 Defendants’ m otion for sum m ary judgm ent is DENIED as to (1) Shoreline’s counterclaim s; (2) Dell’s breach of contract, PACA, conspiracy, and tortious interference with contractual relations claim s; and (3) Dell’s claim s for cover and incidental dam ages under the N.Y.U.C.C. Defendants’ m otion is GRANTED as to (1) Dell’s claim for breach of the covenant of good faith and fair dealing; and (2) Dell’s claim for consequential dam ages under the N.Y.U.C.C. Since neither party has provided any legal basis for the award of attorney’s fees and costs, each will bear its own. Finally, the Court declines to enter an order pursuant to Fed. R. Civ. P. 56(g) treating certain facts as established. See Fed. R. Civ. P. 56(g) advisory com m ittee’s note (g) (“Even if the court believes that a fact is not genuinely in dispute it m ay refrain from ordering that the fact be established. The court m ay conclude that it is better to leave open for trial facts and issues that m ay be better illum inated by the trial of related facts that m ust be tried in any event.”). Ignoring the wise observation of Francis Bacon that “an overspeaking judge is no well-tuned cym bal,” I feel constrained to m ake plain that m y determ ination of the respective parties’ m otions for sum m ary judgm ent are in obedience to the law’s requirem ent that I construe the facts in the light m ost favorable to the non-m oving party being ever conscious in doing so, that I m ake no credibility judgm ent which, if m ade, would perhaps dictate a different result. SO ORDERED. Dated: Brooklyn, New York August 14, 20 12 / s/ I. Leo Glasser Senior United States District J udge 41

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