Bayside Fuel Depot Corp. v Nu Way Fuel Oil Burners Inc.
Decided on December 4, 2009
Supreme Court, Kings County
Bayside Fuel Depot Corporation, Plaintiff,
Nu Way Fuel Oil Burners Inc., et al., Defendants.
Attorney for Plaintiff
Pia A. Riverso, Esq.
Rivkin Radler, LLP
926 Rex Corp Plaza
Uniondale, NY 11556
Attorney for Defendants
Eric H. Holtzman, Esq.
330 Vanderbilt Motor Parkway
Hauppauge, NY 11788
Carolyn E. Demarest, J.
Defendants Nu Way Fuel Oil Burners, Inc. (Nu Way), Carol Barkin and Donald Barkin (collectively defendants) move, pursuant to CPLR 3212, for an order granting them summary judgment dismissing the complaint of plaintiff Bayside Fuel Oil Depot Corporation (plaintiff or Bayside) and for attorney's fees and sanctions pursuant to 22 NYCRR § 130-1.1.
Facts and Procedural History
This is an action for breach of contract commenced by plaintiff, a wholesale provider of fuel oil, diesel fuel, and home heating oil, against defendants, a retail seller of home heating oil (Nu Way) and its principals (Donald Barkin and Carol Barkin). At issue is whether Donald Barkin, President of Nu Way, breached an oral "fixed price contract" or [*2]"fixed price supply contract" to purchase home heating fuel (hereinafter fuel oil) at a fixed price and quantity for a specified period of time. The version of events, albeit recounted differently by each party, are as follows.
The amended verified complaint alleges that on or about October 2, 2008, Nu Way called plaintiff and agreed to purchase 168,000 gallons of fuel oil at $2.90 per gallon for delivery in 42,000 gallon installments in December 2008, and January through March of 2009 pursuant to a "fixed price supply contact," which had been used by plaintiff and Nu Way on prior occasions (the agreement). According to the complaint, Nu Way represented at all times, including on the date it called plaintiff, that it would pay for the above-noted fuel oil.
At Nu Way's request and instruction, and in reliance on its representation that it would purchase the fuel oil at $2.90 per gallon, on October 2, 2008, plaintiff purchased the fuel oil from a supplier to hold on account of Nu Way. The complaint alleges that in its prior dealings with Nu Way "for many years," Nu Way would purchase fuel oil by making an oral agreement with plaintiff, and that after plaintiff purchased the oil, it would forward to Nu Way for execution a "fixed price supply contract" setting forth the terms agreed upon by the parties in their oral agreement. Nu Way would then execute the fixed price supply contract and send the executed copy back to plaintiff.
Pursuant to the above course of conduct and agreement, after purchasing the subject fuel oil, on or about October 2, 2008, plaintiff faxed Nu Way the fixed price supply contract (the contract) setting forth the amounts of fuel oil, the price, and the delivery dates agreed upon by the parties. However, despite stating that it would sign the contract, Nu Way refused to do so. When Nu Way was billed for the oil at the agreed upon price of $2.90 per gallon in December, 2008, Nu Way allegedly admitted to plaintiff that it had agreed to purchase 168,000 gallons of oil at $2.90 per gallon, but wanted to renegotiate the price since the market price had fallen since then. Plaintiff declined Nu Way's offers to renegotiate the contract price.
The complaint further alleges that Nu Way took delivery of 42,000 gallons of fuel oil in December 2008 pursuant to the agreement and contract, but failed to pay the $2.90 per gallon purchase price as required thereby; failed to take delivery of the 42,000 gallons of fuel oil at the price of $2.90 per gallon for January and February, 2009; and advised plaintiff that it had no intention of purchasing the January, February and March 2009 fuel oil pursuant to the agreement and contract. Plaintiff seeks full payment for the 168,000 gallons of fuel oil, money it expended for storage fees for the fuel oil not collected by defendants, and for attorney's fees. In a separate cause of action, plaintiff demands payment from Mr. Barkin and Mrs. Barkin for the foregoing, based upon their personal guarantees of Nu Way's obligations.
In support of its motion for summary judgment, Mr. Barkin asserts a different version of the facts in his annexed affidavit. While he acknowledges that he has entered into fixed price contracts with plaintiff in the past, he states that the vast majority of Nu Way's [*3]purchases from plaintiff have been as a "rack price" purchaser of home heating oil, that is, a purchaser of oil at the price which is physically "posted" at the wholesale seller's terminal which fluctuates with market conditions.[FN1] Those "rack price" purchasers, like Nu Way, to which the wholesaler, like plaintiff, extend credit terms are invoiced for the quantity of product sold, at the "posted" "rack price" for the product at the time of sale. The sale takes place when the product is loaded, under the "rack" into the purchaser's truck.
Mr. Barkin states that on occasion, Nu Way has entered into fixed price contracts with plaintiff, namely a contract which sets a specified fixed price at which an agreed quantity of oil will be sold and purchased at a future date, most typically for each month of the contract's duration, such as the heating season (November through March). Mr. Barkin asserts that "on every occasion when Nu Way has entered into a fixed price' contract with plaintiff, there was a written contract, signed by both plaintiff and Nu Way which set forth the contract's terms and conditions."
On or about October 2, 2008, Mr. John Zerillo, one of plaintiff's salesmen, inquired if Nu Way was interested in entering into a fixed price contract to purchase fuel oil for the months of December 2008 through March 2009 at the fixed price of $2.90 per gallon. Having observed heating oil prices dropping, Mr. Barkin advised Mr. Zerillo that the quoted price seemed high, and that he wanted to research the market and consider the proposal, to which Mr. Zerillo was agreeable. Mr. Barkin states that soon thereafter, plaintiff faxed a document (the "Document") to Nu Way which "constituted the making of an offer to enter into a fixed price' which Nu Way, at its sole option, could either accept (by signing the Document and returning it to plaintiff) or not." The document contained a designated spot for Nu Way's signature, above which appeared the following: "By signing this Agreement Buyer has read and understands each item and condition. IN WITNESS WHEREOF, the parties hereto executed this Agreement as of the date written."
According to Mr. Barkin, the Document was never signed by Nu Way or returned to plaintiff. Instead, Mr. Barkin asserts that on or about October 6, 2008, Nu Way sent a letter to plaintiff, signed by him, which stated "We are hereby notifying Bayside Fuel that we do not wish to enter into contract No. 1002080885 for the fuel for the upcoming heating season," which "constituted a form objection to, and rejection of, the terms of plaintiff's offer." In this regard, Mr. Barkin reiterates that on past occasions when Nu Way entered into a fixed price contract with plaintiff, Nu Way had signed a contract (identical to the Document noted above) and returned it to plaintiff, and that it was always Nu Way's understanding that none of these contracts was formed until Nu Way signed and returned the contract. With respect to the cause of action against him and his wife, Mr. Barkin states that no independent liability is asserted in the complaint against them.
In opposition to Nu Way's motion, Mr. Zerillo asserts in his affidavit that he has been [*4]a sales representative for plaintiff for the past 14 years, and has been assigned to Nu Way since 1996. In the fall of 2008, customers such as Nu Way sought advice on whether they should "lock into" a price for oil or "ride the market" to see if the prices would drop. Many of plaintiff's customers, including Nu Way, combined both strategies depending on the demands of their own customers. Mr. Zerillo describes the way in which he and Nu Way negotiated business in the past:
"Nu Way . . . would call me and ask where the oil prices were. If I gave them a price, we would discuss it, and agree upon a fixed price and a fixed quantity that [they] would purchase at such price. NuWay would also purchase oil at the rack price. In fact, NuWay's purchases at the rack price often exceeded their fixed price purchases, but NuWay sought and agreed to fixed price purchases in the past and was well aware of the purchase process.
All of my negotiations and discussions each year took place with Donald Barkin. Mr.
Barkin knew from our prior course of dealing over the years, that if, in response to his request, I
quoted him a price per gallon for a fixed contract for the purchase of oil, and he accepts it,
Bayside would immediately place the order for that oil in its market so that it can guarantee that
the price will be met. Thus, the oral agreement of NuWay, to purchase oil is and always has
been, the representation and agreement that Bayside relies upon to go into the market and
purchase the oil to fulfill that fixed price contract."
According to Mr. Zerillo, on or about September 25, 2008, Mr. Barkin advised him that he was interested in a fixed price contract because he had customers that wanted to purchase oil for the 2008-2009 winter season at a fixed price. After some discussions, on or about September 30, 2008, Mr. Zerillo offered Mr. Barkin the price of $2.90 per gallon. Mr. Barkin accepted the price, and represented and agreed that Nu Way would purchase 168,000 gallons of fuel oil for delivery in the months December 2008 through March 2009 at 42,000 gallons per month.
On October 1, 2008, after the close of the New York Mercantile market, Mr. Zerillo states that he advised Mr. Vincent Allegretti, a vice president at Bayside, that Nu Way agreed to purchase the 42,000 gallons of fuel oil per month from December 2008 through March 2009 at $2.90 per gallon. Mr. Allegretti states in his own affidavit that he put in the bids which would have been executed overnight. Based upon Nu Way's agreement and representation to purchase the fuel oil at $2.90 per gallon, plaintiff purchased 168,000 gallons for delivery in accordance with the agreement.
Mr. Zerillo states that on October 2, 2008, he prepared the contract with Nu Way confirming the terms of the oral agreement and faxed it to Mr. Barkin's office with a cover letter requesting that Mr. Barkin sign the contract and send it directly to Mr. Allegretti. Shortly thereafter, Mr. Barkin said he could not sign the contract because he was not in the office, and would sign it upon his return. He also told Mr. Zerillo not to call the office [*5]because he had told his wife (Carol Barkin) that he was not buying a fixed price contract, and that the contract sent was just a "sample."
After Barkin's repeatedly indicating to Zerillo that he would sign the contract, but having failed to do so, on December 1, 2008, Nu Way picked up 6,637 gallons of oil at Bayside's depot, for which it was billed at the fixed price of $2.90 per gallon. On or about December 3 or 4, 2008, Mr. Barkin appeared at Bayside's office and complained that Bayside had billed him at $2.90 per gallon. Mr. Allegretti responded that this was the contract price. Mr. Barkin claimed, for the first time, that he had advised Mr. Zerillo that he did not want a fixed price contract. After further discussions, wherein Mr. Zerillo, via telephone, disputed Mr. Barkin's claim, Mr. Barkin suggested that rather than bill Nu Way at $2.90 per gallon for 42,000 gallons for the first month, Bayside should allow Nu Way to purchase oil throughout the month at the rack price, and Nu Way would purchase 42,000 gallons in the last week of each month from December 2008 though March 2009 billed at $2.90 per gallon. Further, at Mr. Barkin's request, Bayside agreed to reverse the charges on the 6637 gallons of fuel oil that had already been billed to him.
Thereafter, between December 10, 2008 and January, 2009, Mr. Barkin made three separate proposals to obtain a lower price per gallon, to which plaintiff did not agree. Nu Way picked up 42,000 gallons of fuel oil in the last week of December, 2008, for which it only paid the rack price, rather than the contract price. Nu Way then picked up oil in January, 2009 and was billed the rack price, which it paid. However, when plaintiff advised Nu Way that the amount paid failed to reflect 42,000 gallons at the $2.90 contract price as agreed, Mr. Barkin sought to discuss the matter further with Mr. Allegretti who, instead, asked counsel to send a letter demanding payment for the lost profits and other damages sustained by plaintiff. In response, by letter dated February 27, 2009, Carol Barkin stated that Nu Way had:
"[n]ever entered into a fixed . . . [c]ontract with Bayside . . . for the months of December, 2008 and January, February and March 2009. Although a discussion was had between Donald Barkin . . . and John Zerill[o] . . . regarding such contract [,] Mr. Barkin notified John the following day that NuWay would not be executing a supply contract this heating season accordingly the contract sent to NuWay by Bayside was never executed."
In March, 2009, plaintiff commenced the instant action against defendants for breach of
contract, unjust enrichment, fraudulent inducement, enforcement/breach of the personal
guarantees (by Donald Barkin and Carol Barkin), and promissory estoppel. On or about April 13,
2009, defendants filed the instant motion along with their answer, which denied the allegations of
the complaint, and asserted 23 affirmative defenses, including the Statute of Frauds. On or about
April 30, 2009, plaintiff served and filed an amended verified complaint. On or about May 21,
2009, defendants interposed their answer to the amended complaint. Defendants' motion for
summary judgment is presently before the court.
In support of their motion, defendants argue that the Statute of Frauds renders the contract unenforceable because it is one "for the sale of goods for the price of $500 or more" without a "writing sufficient to indicate that a contract for sale has been made by the parties and signed by the party against whom the enforcement is sought" (Uniform Commercial Code [UCC] 2-201). "Under UCC 2-201 (1), a contract for the sale of goods in excess of $ 500 is unenforceable unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought'" (KSW Mech. Contrs., Inc. v Eco-Care Corp., 259 AD2d 671, 672 , lv denied 93 NY2d 811 ). A signed memorandum constitutes a writing in confirmation of the contract pursuant to UCC 2-201(2) if it satisfies the formal requirements of UCC 2-201(1) unless written notice of objection to its contents has been given within 10 days after it has been received (Considar, Inc. v Redi Corp. Establishment, 238 AD2d 111 ). Although defendants concede that the October 2, 2008 letter faxed to them by Bayside can be fairly construed as an offer which they were free to accept or reject, they argue that it is undisputed that they rejected the offer via their October 6, 2008 letter. Therefore, defendants contend that the fax sent by Bayside did not constitute a "writing in confirmation" of the oral agreement under UCC 2-201(2), and thus is inadequate to satisfy the Statute of Frauds. In addition, defendants maintain that because the alleged oral contract is barred by the Statute of Frauds, the claim against the individual defendants is also barred.
Defendants also argue that they are entitled to costs, attorney's fees and the imposition of sanctions against plaintiff because the breach of contract claim is completely without merit, and the action was commenced to harass them into an unjust settlement and to force them to expend monies to defend against plaintiff's meritless claims.
Defendants also assert that while the complaint appears to allege five causes of action, they all relate to the alleged breach of the oral fixed price contract claimed to have been made on or about October 2, 2008.
In opposition to defendants' motion, plaintiff first argues (in its memorandum of law) that since the motion is directed solely to their breach of contract claim, defendants have failed to establish that they are entitled to summary judgment on the remaining causes of action asserted in the amended complaint.
Plaintiff next argues that the oral contract is enforceable and is not barred by the Statute of Frauds. Specifically, plaintiff contends that the evidence demonstrates that the parties entered into an oral agreement for the sale of 168,000 gallons of fuel oil at $2.90 per gallon for December 2008 through March 2009. Further, plaintiff asserts that the written contract it faxed defendants within a reasonable time after the October 2, 2008 oral agreement reflected therein constituted a "writing in confirmation" of the agreement pursuant to UCC 2-201(2) because it contained specific terms and referenced the date of the oral agreement, and is consistent with industry practice. Plaintiff also contends that a material issue of fact exists as to whether defendants objected to plaintiff's confirmation of the [*7]October 2, 2008 oral agreement. In this regard, plaintiffs note that defendants failed to offer any evidence as to how the October 6, 2008 letter was sent, and that defendants failed to mention or produce the letter until they moved for summary judgment.
Plaintiff further argues that defendants are estopped from asserting the Statute of Frauds as a defense since defendants partially performed the oral agreement of October 2, 2008 by taking possession of 42,000 gallons of fuel oil in the last week of December 2008 - conduct which is unequivocally referable to the oral agreement of October 2, 2008. Plaintiff also argues that its claim of promissory estoppel precludes defendants from asserting the defense of the Statute of Frauds.
In further opposition to defendants' motion, counsel for plaintiff requests that the court deny the motion or hold it in abeyance to allow plaintiff to conduct discovery. Plaintiff seeks to conduct depositions of Donald Barkin and Carol Barkin, and to prepare interrogatories and a notice for discovery and inspection that address, among other things, the October 6, 2008 objection letter, its handling, transmission, and preparation. Plaintiff further seeks production of all hard drives, floppy discs, or other electronic data storage devices containing or which contained any copy or version of the objection letter, electronic data and/or paper documents relating to any purchase of fuel oil from Bayside from 2002 to present by defendants. Counsel states that the parties have not had the opportunity to conduct discovery since defendants filed their motion with their answer, but that serious questions have arisen regarding the creation and delivery of the October 6, 2008 objection letter. Counsel asserts that discovery will enable plaintiff to demonstrate that the October 6, 2008 objection letter was never sent, and that defendants had a binding contract with plaintiff for the purchase of oil, from which they sought to extricate themselves when the price of oil dropped.
In their reply memorandum of law,[FN2] defendants set forth six material misstatements of fact they claim plaintiff has asserted in its memorandum, namely: 1) plaintiff asserts that defendants do not dispute that they ordered the oil when defendants in fact dispute that they entered into a fixed price contact; 2) plaintiff asserts that Donald Barkin and Carol Barkin were customers of Bayside in an effort to impose personal liability on them, which defendants dispute; 3) plaintiff implies that Nu Way was not a regular "rack price" customer when it had in fact engaged in the regular practice of making "rack price" purchases from plaintiff; 4) plaintiff asserts that Nu Way first stated in its February 27, 2009 letter that it had orally rejected the fixed price contract on October 3, 2008, but Mr. Barkin had in fact reminded Mssrs. Allegretti and Zerillo on December 3, 2008, that he had refused the proposed contract in early October; 5) plaintiff states that the fixed price contract references the date of the oral agreement (October 2, 2008) when plaintiff concedes that the alleged oral [*8]agreement occurred prior to October 1, 2008 - on or before September 30, 2008; and 6) plaintiff claims that Mr. Barkin's affidavit representing written objection on October 6 is contradicted by Ms. Barkin's February 27, 2009 letter which does not mention the October 6, 2008 letter, but states only that Mr. Barkin orally advised Mr. Zerillo that he would not execute the contract.
Defendants contend that the October 6, 2008 letter is determinative of the instant motion, and that, despite plaintiff's denial, it was received. Defendants assert that any such factual issue may be easily resolved by a framed issue hearing.
Defendants further contend that the writing plaintiff faxed itself evidences plaintiff's intention that any fixed price contract required the signature of both parties, noting that the proposed fixed price contract states that it was "made as of October 2, 2008," a date when there were no oral discussions between the parties, and that the contract contained a space for both parties' signatures. Defendants argue that the acknowledged history is that every fixed price contract between the parties has been written and signed by both parties, that the fax was accompanied by another letter requesting defendants' signature, which plaintiff failed to provide in opposition to the motion, that the text of the fax does not suggest that it confirms a prior oral agreement, and that plaintiff repeatedly asked Mr. Barkin to sign and return the contract, evidencing its belief that there was no oral argument, all serve to impeach plaintiff's claim of a valid and binding contract. Defendants also dispute plaintiff's claims for payment for storage and attorney's fees which were not alleged to have been discussed when the oral agreement was reached.
Defendants further assert that there has been no partial performance unequivocally referable to the alleged oral contract so as to render the alleged oral contract enforceable because any taking of fuel oil by them between December 2008 through January, 2009 was consistent with their "rack price" purchases, as opposed to purchases made pursuant to a fixed price contract. Defendants also contend that the essential elements of promissory estoppel are neither pleaded nor established by the facts of the case. As to the remaining claims asserted in the amended complaint, defendants argue: 1) that they were not unjustly enriched because they purchased the fuel oil at the rack price charged all other customers; 2) that the complaint fails to plead the essential elements of fraudulent inducement; and 3) that the claims asserted against the individual defendants are without merit since they are derivative of the breach of contract claim, which lacks merit.
Lastly, in two reply affidavits submitted by Mr. Barkin and his daughter/employee Wendy Sutkin, Mr. Barkin asserts, among other things, that it was his "understanding that Bayside would not send a proposed fixed price' contract until after it had explored market pricing conditions and that even a written fixed price' contract signed by Nu Way was cancelable, even after it was returned to Bayside, up until the time when Bayside obtained a supplier which was contractually bound to provide Bayside, at a fixed price, with the home heating oil to be taken by Nu Way." Mr. Barkin bases this understanding upon the language of the contract, since it provides, in pertinent part, that "Price will be in effect based upon the [*9]executed order-price for that contract month . . . Buyer may not cancel once fixed-price order has been executed." Mr. Barkin also reiterates that he never entered into an oral agreement in the last week of September, 2008 with plaintiff to purchase 168,000 gallons of fuel oil at $2.90 per gallon, and that the October 6, 2008 letter Nu Way sent plaintiff was merely a "courtesy confirmation of my prior telephone discussion with Mr. Zerillo . . . in which Nu Way advised Bayside that it wished not to accept Bayside's offer to enter into a fixed price' contract."
Ms. Sutkin states in her affidavit that she typed the October 6, 2008 objection letter on her computer, printed it without saving it, and that another Nu Way employee mailed it to plaintiff at a United States post office.
Counsel for defendants also submits an affirmation in reply, in which he states, among other
things, that further discovery with respect to defendants' October 6, 2008 objection letter is not
warranted on the grounds that: 1) the court may decide the motion without regard to the October
6, 2008 letter since the October 2, 2008 letter faxed by plaintiff did not constitute a "writing in
confirmation" pursuant to UCC 2-201(2); 2) that Ms. Sutkin's affidavit provides virtually all
existing information about the October 6, 2008 objection letter, and thus further depositions are
not warranted; 3) and that plaintiff has failed to show that the data it seeks still exists on the
computer on which the October 6, 2008 objection letter was typed.
"Under UCC 2-201 (1), a contract for the sale of goods in excess of $500 is unenforceable unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought'" (KSW Mech. Contrs., Inc. v Eco-Care Corp., 259 AD2d 671, 672 , lv denied 93 NY2d 811 , quoting UCC 2-201 ).[FN3] However, "[t]he merchant's exception permits enforcement of oral contracts [between] merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents'" (Smith Packing Co. v Quality Pork Int'l, Inc., 167 AD2d 875, 875 , quoting UCC 2-201 ).[FN4] "[W]hether documents constitute [*10]confirmatory writings must be determined from the documents themselves, as a matter of law'" (id., quoting Bazak Intern. Corp. v Mast Indus., 73 NY2d 113, 118 ), without reference to external evidence. If, however, the confirmatory writing is objected to in writing within 10 days after it is received, the oral contract is given no effect (UCC 2-201).
Here, the October 2, 2008 fax sent by plaintiff to defendants constitutes a "writing in confirmation of the contract" pursuant to UCC 2-201(2) on its face and therefore satisfies the formal requirements of UCC 2-201(1). The Court of Appeals held in Bazak Intern. Corp. that "[i]n determining whether writings are confirmatory documents within UCC 2-201 (2), neither explicit words of confirmation nor express references to the prior agreement are required, and the writings are sufficient so long as they afford a basis for believing that they reflect a real transaction between the parties" (Bazak Intern. Corp., 73 NY2d at 123). In Bazak, the plaintiff sent the defendant five "purchase orders" for the sale of goods exceeding $500, signed by plaintiff but not by defendant, against whom enforcement was sought. Defendant argued, as do defendants in this case, that the writings only constituted offers to enter into an agreement, and therefore failed to satisfy the Statute of Frauds (id. at 117). However, the court rejected the defendant's argument holding that the writings therein "adequately indicate[d] confirmation of a preexisting agreement" (id. at 124). Specifically, the court found that:
"The terms set forth are highly specific; precise quantities, descriptions, prices per unit and
payment terms are stated. The documents refer to an earlier presentation by defendant's agent . .
.The date April 23, 1987 is written on the forms and the date April 30 on the transmission,
indicating reference to a transaction that took place a week before they were sent. Finally,
[defendant] itself relayed [plaintiff's] forms. The telecopier transmittal sheet shows that the forms
were sent to [defendant] by defendant's own parent company in New York, using its facilities
obviously suggesting that the forms were not merely unsolicited purchase orders from
[plaintiff], but that their content reflected an agreement that had been reached between the
The court concluded that "[w]hile no one of these factors would be sufficient under UCC 2-201 (2), considered together they adequately indicate confirmation of a preexisting agreement so as to permit [plaintiff] to go forward and prove its allegations" (id. at 24). Other courts have found similarly (see M. Slavin & Sons Ltd. v Glatt Gourmet Cuisine, Inc., 23 Misc 3d 18, 20 , citing UCC 2-201 , , and B & R Textile Corp. v Domino Textiles, 77 AD2d 539  ["An invoice between merchants containing the names and addresses of the buyer and seller, the date, the payment terms, the price of the goods, a description of the goods, the amount of the goods and the total price of the sale constitutes a writing in confirmation of a contract for the sale of goods satisfying the statute of frauds, provided that no written notice of objection is given as to the contents of the invoice within 10 days of receipt"]; B & R Textile Corp. v Domino Textiles, 77 AD2d 539, 539-540  [*11][The invoice was on the letterhead of the seller, contained the names and addresses of the buyer and the seller, the date of agreement, the payment terms, the price of the goods, a description of the goods, the amount of goods and the total price of the sale, and no written notice of objection to its contents was given within 10 days after it was received; therefore, the invoice constituted "a writing in confirmation of the contract" pursuant to UCC 2-201(2) and satisfied the formal requirements of UCC 201-1]; Considar, Inc., 238 AD2d at 112 [documentary evidence established that the principal terms of the oral agreement were confirmed in a signed memorandum, on plaintiff's letterhead, faxed to defendant the next day, found to constitute "a writing in confirmation of the contract" pursuant to UCC 2-201 (2) and sufficient to satisfy the formal requirements of UCC 2-201 (1) in the absence of written notice of objection to its contents within ten days after it was received]; Trafalgar Square, Ltd. v Reeves Bros., Inc., 35 AD2d 194, 197 [five contracts received and retained without objection, goods delivered and invoices issued for each shipment, which all contained, on their face, a reference to the particular written contract number under which the invoice was issued, held to constitute "writings in confirmation" under UCC 2-201(2)]).
Here, the top of the October 6, 2008 fax contains the name, address, and telephone number of plaintiff, the name of defendant Nu Way, the contract number, and the following statement: "AGREEMENT made as of October 2, 2008 between Bayside Fuel Oil Depot Corp., 1776 Shore Parkway, Brooklyn, NY 11214 hereinafter called "Seller" and Nu-Way Fuel Oil Burners Inc., hereinafter called "Buyer." The document further states "Supply contract for # 2 fuel oil whereby Bayside Fuel Oil Depot Corp. supplies under the following general terms: 1. Volume (Volume must be purchased in 42,000 gallon increments),"under which is a chart containing the month, year, contract number, gallons and "2.9000" price per gallon, for the months December 2008 through March 2009. At the bottom of the document, there appears a line for the signature of the Seller, signed by John Zerillo, and a line for the signature of the buyer, which is blank. Taken together, the specific information contained in the fax adequately indicates confirmation of a pre-existing agreement and thus constitutes a writing in confirmation under UCC 2-201(2).
Contrary to defendants' claim, plaintiff correctly notes that a document may constitute a writing in confirmation under UCC 2-201(2) even though the "customer's acceptance" space on the document is unsigned (Bazark, 73 NY2d at 119-120, 124). Further, as noted above, a "writing in confirmation" does not require express words of confirmation or references to the pre-existing oral agreement (id. at 122; Great White Bear, LLC v Mervyns, LLC, 2007 U.S. Dist. LEXIS 31224 [S.D.NY Apr. 26, 2007], citing Bazak Intern. Corp., 73 NY2d at 123). In addition, the written confirmation may contain terms that were not part of the oral agreement (Bazark, 73 NY2d at 124; Trafalgar Square, Ltd., 35 AD2d at 196-197).
Defendants argue that the fax should not be considered a writing in confirmation of the oral agreement on the grounds: 1) that the fax states that the agreement was made as of October 2, 2008, when there were no oral discussions between the parties on that date; 2) that the undisputed history of the parties shows that every fixed price contract entered into [*12]between them was written and signed by both parties; and 3) that plaintiff repeatedly sought to have the contract signed by defendants.[FN5] Although these considerations may ultimately overcome plaintiff's claims, even defendants' counsel concedes, in effect, that "whether documents constitute confirmatory writings must be determined from the documents themselves, as a matter of law'" (Smith Packing Co., 167 AD2d at 875, quoting Bazak Intern. Corp., 73 NY2d at 118]). This Court's finding on the limited issue of the Statute of Frauds does not preclude further litigation of the merits.
Although the October 2, 2008 fax constitutes a writing in confirmation of the alleged oral agreement, a question of fact exists as to whether defendants sent plaintiff written notice of their objection within ten days after plaintiff's October 2, 2008 fax was received. Mr. Barkin states in his affidavit that Nu Way sent a letter to plaintiff, signed by him, on or about October 6, 2008, which "constituted a formal objection to, and rejection of, the terms of plaintiff's offer." Ms. Sutkin confirms that she wrote the letter and had it sent to plaintiff via the United States mail. However, plaintiff's principals, Zerillo and Allegretti, deny receiving the letter and state that plaintiff first became aware of the letter on or about April 13, 2009, when it was received annexed to defendants' motion. They claim defendants admitted to plaintiff between October and December 2008 that Nu Way had agreed to purchase 168,000 gallons of fuel oil for the fixed price of $2.90 per gallon but wanted to renegotiate the contract, and that defendants never mentioned, produced, or referred to the letter during any meeting or conversation until the filing of defendants' motion, even when Mr. Barkin was attempting to renegotiate the contract and sent plaintiff three counter-proposals, or when he appeared at plaintiff's office in December, 2008 to deny the existence of the contract. Plaintiff challenges the credibility of defendants' claim to have sent the October 6 letter and a question of fact has been raised as to whether the letter was actually created. As plaintiff notes, the February 27, 2009 letter sent by Ms. Barkin to plaintiff states that while Mr. Barkin and Mr. Zerillo discussed the fuel oil contract, Mr. Barkin "notified" Mr. Zerillo "the following day that Nu-Way would not be executing a supply contract this heating season." However, the February 27, 2009 letter does not mention the October 6, 2008 letter.
In sum, a question of fact exists as to whether defendants created and/or sent the October 6, 2008 objection letter to plaintiff, and thus defendants' motion to dismiss the breach of contract cause of action is denied.
Finally, plaintiff argues that UCC 2-201 (3) ( c ) precludes defendants from asserting the Statute of Frauds to evade their obligations under the oral contract. "UCC 2-201(3)(c). [*13]. . provides an exception to the writing requirement [UCC 2-201] where the goods "have been received and accepted" (Morris v Cutting Motors, Inc., 2 AD3d 1244, 1246 , quoting UCC 2-201[c]). However, "[w]ith respect to the doctrine of part performance, that doctrine removes oral agreements from the scope of the statute of frauds only if [the party's] actions can be characterized as unequivocally referable to the agreement alleged . . . [T]he actions alone must be unintelligible or at least extraordinary, explainable only with reference to the oral agreement" (Binkowski v Hartford Acc. & Indem. Co., 60 AD3d 1473, 1475  [internal citations and quotations omitted]). Here, plaintiff contends that Nu Ways' pick-up of 42,000 gallons of fuel oil during the last week of December, 2008 is unequivocally referable to the oral agreement of October 2, 2008 because, according to Mr. Allergretti, Mr. Barkin proposed that instead of billing Nu Way for the first 42,000 gallons of fuel oil purchased during the month, plaintiff would allow Nu Way to purchase oil throughout the month at the rack price, but that during the last week of the month, Nu Way would purchase at least 42,000 gallons of fuel oil to be billed at $2.90 per month, and would pay the contract price on that amount. Thus, plaintiff states that by picking up the 42,000 gallons of oil at the end of December, 2008, defendants partially performed the October 2, 2008 oral contract.
Defendants argue that "any sale of home heating oil by plaintiff to Nu Way, as well as any lifting or taking of home heating oil by Nu Way from Bayside, during December, 2008, or during January, 2009, is perfectly consistent with Nu Way's making of rack price' purchases, rather than purchases under any alleged oral fixed price' agreement." They also contend that their "tendering of payments for amounts which were consistent only with being a rack price' purchaser, and [their] immediate objections to the first incorrect invoice received by [them] . . . evidence [their] conviction that there was no oral fixed price' contract." Thus, a question of fact also exists as to whether defendants' pick up of 42,000 gallons of fuel oil in the last week of December, 2008 constituted a partial performance referable to the October 2, 2008 oral agreement (see Charles Hyman, Inc. v Olsen Industries, Inc., 163 AD2d 232, 236 ) and requires denial of defendants' motion.
That branch of defendants' motion which seeks to dismiss the remaining causes of action in the amended complaint is also denied. "The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to permit the movant to introduce new arguments or new grounds for the requested relief" (Matter of Allstate Ins. Co. v Dawkins, 52 AD3d 826, 826-827 ). In their motion, defendants moved for dismissal of plaintiff's claim for breach of contract. While defendants briefly discussed the remaining causes of action in the amended complaint, they did not present arguments seeking their dismissal. Thus, defendants may not properly move to dismiss the remaining causes of action in their reply memorandum thereby precluding plaintiff's opportunity to respond to the defendants' arguments.
Defendants' motion for summary judgment dismissing the amended complaint and for attorney's fees and sanctions is denied. Discovery shall proceed expeditiously. Counsel are [*14]directed to appear for conference before this court on January 20, 2010.
This constitutes the decision and order of the court.
E N T E R,
J. S. C.
Footnote 1:The top loading tank trucks of "rack price" purchasers are driven under a loading "rack" and oil stored at the terminal is the loaded into the cargo section(s) of the tank.
Footnote 2:Defendants state that they submit this memorandum of law, "principally, to respond to plaintiff's memorandum in opposition to defendants' motion. Because [defendants] have not previously submitted a memorandum, they have not designated this memorandum as a reply.'"
Footnote 3:UCC 2-201 provides, in pertinent part, that: "(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $ 500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker."
Footnote 4:UCC 2-201(2) provides that: "Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received."
Footnote 5:Relying upon Scheck v Francis (26 NY2d 466 ), defendants also argue that the October 2, 2008 fax sent by plaintiff was accompanied by a cover letter requesting that Mr. Barkin sign it and return it to Mr. Allegretti, indicating that both parties understood that the agreement would only take effect after they had both signed it. However, Scheck involved a personal contract entered into between a manager and a singer; it did not involve the sale of goods which is at issue here. Moreover, this letter does not appear in the submission of either party.