Cantarelli S.P.A. v L. Della Cella Co., Inc.

[*1] Cantarelli S.P.A. v L. Della Cella Co., Inc. 2009 NY Slip Op 52573(U) [25 Misc 3d 144(A)] Decided on December 18, 2009 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 18, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, Hunter, JJ
.

Cantarelli S.P.A., Plaintiff-Respondent, 570555/09

against

L. Della Cella Co., Inc., Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Jeffrey K. Oing, J.), entered August 14, 2008, which, upon a prior order granting summary judgment, awarded plaintiff damages in the principal sum of $21,239.02.

Per Curiam.

Judgment (Jeffrey K. Oing, J.), entered August 14, 2008, affirmed, with $25 costs.

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on its cause of action to recover for goods sold and delivered (see generally Neuman v Distrib., Inc. v Falak Pharmacy Corp., 289 AD2d 310 [2001]). Plaintiff submitted, among other things, an invoice for the goods it sold to defendant that specified that the goods were to be shipped FOB to a particular destination, and the affidavit of a witness with personal knowledge of the relevant events confirming that the goods were loaded into a container (which was closed and sealed) and delivered to the FOB destination. This evidence established prima facie that plaintiff delivered the goods to the FOB destination and concomitantly that the risk of loss passed to defendant. In opposition, defendant, which conceded that it did not have an agent present when the container was loaded and sealed, offered nothing but speculation to support its claim that the container did not contain the correct number of goods at the time it arrived at the FOB destination.

We have considered and rejected defendant's unpreserved argument that summary judgment was premature (see CPLR 3212[f]), as well as defendant's contention that Civil Court erred in the manner in which it computed interest on the judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 18, 2009