K.G.K. Diamonds L.L.C. v Slane & Slane Designs, L.L.C.

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K.G.K. Diamonds L.L.C. v Slane & Slane Designs, L.L.C. 2011 NY Slip Op 32132(U) August 2, 2011 Sup Ct, NY County Docket Number: 101530/11 Judge: Donna M. Mills Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 81412011 SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY 58 PART PRESENT : DONNA M. MILL$ Justice . I _ I --- K. G.K. DIAMONDS L. L. C', ,. INDEX No. PI ainti ¬f, MOTION DATE -V- MOTION SEQ.No. SLANE & SLANE DESIGNS, L.L.C., Defendant. The following papers, numbered 1 to 101530/11 0\ MOTIONCALNo. were read on this motion for PAPERS NUMBERED 1 Notice of M o t i d o r d e r to Show Cause-Affldavits- Exhibits.. .. 2- Answering Affidavits- Exhibits ' 1 Replying Affidavits CROSS-MOTION: F I L E D NO Upon the foregoing papers, it is ordered that this motion is: Check one: \ / FINAL DISPOSITION AUG 04 2011 WNNA M. MILLS, J.S.C. NON-FINAL DISPOSITION [* 2] Plaintiff, Index No. 101530/I I FILED AUG 04 2011 Plaintiff IIIOVCS to dismiss defendant s counterclaim and complaint. Defendant cross-moves for dismissal of the first and third causes of action in the cornplaint Plainlilfbrings this action in order to recover what it clainis is money to which it is ciititled as a result of various transactions conducted by the parties. Plaintiff. asserts that it sold and del ivcrcd to defendant quantilies 01 loose polished diamonds, and seeks an unpaid balaiicc of $65,435.00. According to plaintiff, defendant s representative inspected and approved the diamonds, a11d at no time raiscd any ob,jections to the quality or price of said diamonds. Plaintiffs first C B U S C of action in its complaint is based on breach of contract. The second causc of action is based on goods sold and delivered. The third cause of action is based oil an account statcd. I hcfourth c m s c of action is bascd on unjust enrichment Tlic fifth causc of action is based or1 quantum valebant. I licsixth cause of actioii seeks attoiticy s fccs. In its aiiswcr, clefcndant brings a countcrclaim bascd on breach of the covenant of good h i t h and fiir dcnl iiig , Plaintill moves to clismiss the counterclaim 011 the ground of failure to state a claim. I n [* 3] its counterclaim, dcfciidaiit states that in a Ictter, dated Janiiary 7, 201 1, it proposcd to pay plaintiff $3,OOO per morilli against its obligations. According to dcfcndant, plaintifl failed to adhere to this installment plan. Plaintiff denies agreeing to any installniciit plan, and avers that it sought thc full balance according to tlic tcrnis of the original sale. Plaintiff asserts that after delivering thc dianioiids, it made several cleiiiands for payment to defendant prior to the commencement of this action. Since plaintiff maintains that it f d f l l c d its obligations to dcfcndant, it asserts tliat it did not deprive defendant of'its contractual rights. 'I'hcrcforc, plaintiff secks dismissal of the counterclaim. Plaintiff also sccks sunimary Judgment on the ground of a lack olmaterial issues of fact concerning Ihe facts alleged in the complaint. Plaintiff argues that dcfendnnt has acknowledged its failurc to render lid1 payment, thus breaching the contract. Plaintiff submits copies of invoices, memoranda and other documents that allegedly relate to the transactions at bar. Elsewhere in the complaint, plaintiff raises different legal theories, such as unjust enrichment and quariturii valebant, which would indicate a lack of an express contract and a claim bascd on principles of equity. Ikliind thcse equitable causes of action is the assertion that plaintiff delivered goods to dcfeiidaiit, and dekndant accepted the goods without objcction, subscqucntly niaking only a partial paynicnt. Ikfcndant opposcs the motion to dismiss the counterclaim as bejng premature, as tlicrc is allegedly 3 question of plaintift's good will in its alleged negotiations with defeiidant. The suiiiniary judgiiicnt riiotion i s also opposed as being premature, ;IS delkndant c l a i m that there is a iieed fc7r sul~staiitinl discovery. Ikfcndanl contends lliat issues of fact preclude jiidgmenc, such as whether ii contract existed to justify a brcach of contract claim, whcthcr thcrc were terms of 2 [* 4] repayiiicnt not disclosed by plaintill: and how much is actually owed. Llcfcndant argues that the documents submitted by plaintiff are hearsay and not shown to be busincss records kept in the ordinary coul-sc of business. Defendant cross-riioves for the disniissal of the breach of contract and account stated caiises ol'action. Ikfendant stntcs that there is no proof of an express contract and 110 contract was ailliexed to the complaint or the nioviiig papers. As for the claim for. an account stated, dcferidarit cuiiteiids that tlicre is 110 proof of a demand froin plaintiff, despite plaintiffs asscttions. In its reply papers, plaintiff' argues that the evidence submitted in the moving papers are obviously business records, as confirmed by Vinamra Kothari, plaintifps siipervisor of financial operations, in his affidavit, Plaintiff asserts that the memoranda submitted are proof of an agrcement, because the documents set forth in detail the quality, quantity and agreed-upon prices with respect to the diamonds. Plaintiff statcs that defendant failed to properly dispute tlic goods sold and delivered, offering no evideiicc of spccific objections. Finally, plaintill argues that there is no need for discovcry i n tlic h e n c e of'matcrial disputes as to the facts i n this case. 111rcsponsc to the cross motion, plaintiff'asserts that therc is 1 1 0 need to allege a formal or wl-ittcn clcniand as an element of an account stated claim. Plaintiff contcnds that case law c o n h i i s that an account statcd is inerely an cxprcss or implied agreement with respect to tile corrcctness of account itcms and the bnlancc due. 'I'hc court shall first ddcrtiiinc the validity olthe motion to dismiss the counterclaim. The ctmrt takcs tlic a1Icgations as true and rcsolves a11 inferences reasonably flowing fiom those 3 [* 5] allegations in rhe pleader's favor. ,Set. RtJsiderice on M d k i n I ' o ~ i ~ J ~ ~ r n i t i i i1 r r i T. 1 W. 4 Gdlugher & A.s.vocirrtc..s, h c ' . , 271 AD2d 309 ( I '' Dept 2000). A deteriniliation will bc made as to whether the facts as alleged lit within any cognizable legal theory. Stl'tle Leon v M'lsrtinc~, NY2d 8337-88 84 (1 994). A copy of the .lanuary 7, 301 1 Icttcl- is the only evidence submitted which indicatcs a11 installment plan. 'l'here is 110 evidence submitted that shows the parties reaching an accord as to how the balalnce was to be repaid. An e-mail from plaintiffs representative states that plaintiffs bailkers sought rcpaymcnt i n two or three monthly installments. I lowever, plaintifT contends that this e-mail does iiot constitute any acceptance of defeiidant's plan, arid when no meeting of the minds occui-recl as to thc proposed installtnent plan, plaintiff instructed its counsel to procccd with the filing and service of thc summons aiid complaint. The court shall disiiiiss the counterclaim, as there is no proof that plaintiff convcycd a willingness to accept dcfcndant's installnient proposal, of which it had no obligation to accept. l'licrcforc, plaintiff did nut breiicll any duty of good faith and fair dealing. It is well scttled that proponents of motions of summary .judgment must establish the cause of action o r delense sul'lkicntly to warrant the court as a matter of law to direct judgment in their h v o r (CPLR 3212 [b]), a~icl establishing proof in adinissible h r m (Zuckerntan17 (',icy by o f . N w Iiwk, 49 NY2d 557, 562 [ 19801); Bush v ,St, C:'Iairc'A IIospikiI7 82 NY2d 738, 739 ( 1993). Plaintill'argues that no disputcd issues of fact exist in this casc. While dcfendant asserts a lack of an csprcss contract. invoices in the li,rin ol'iiieinoranda submitted by plaintill' provide, proof' of an agrccment or agreements that include pertinent terms. Apparently, del'endant found validity in the contract. ; \ dekuclant i procccded to render at least partial payment lor the 4 [* 6] diamonds. Tlic essential elemciits of ;-i a ~ s of action to recover daiiiagcs lor breach of contract are c e the cxisteiice of a contract, the plaintiff's performance under the contract, the defcndant's breach of that contract, and resulting daniagcs. ,Set . P Morgan J v J 1 . Elcctric o f N e w York, Irtc., 1 ~ ~ ~ ~ U S C ? 69 AD3d 802, 801 (2d I k p t 2010). Whelher writings cxchanged by parties constitute a contract is a question of law for determination by the coult. ,See New Hmipshiie Ins. C:'o. 11 WellcslL~y C,'cipitcrl Pwt/wrs, 1w.,200 AD2d 143, 146 (1 rt Depl 1994). 'I'hc COUII tinds that plaintilr has provided instruments representing a biiiding agrecnient in the iiicmoranda, and has denionstratcd an adeqiiale claim for breach of conlracl hcrc, and dcfcndant's cross motion for dismissal 01. the claim shall bc denied. Defendant also sccks dismissal of the account stated claim. "An account stated is an agreement between parties to an account based upon prior trailsactioils between them with respect to the correctness of the account items and balance due [citations ornilted] ." Xyun C;rcplzii:.s, Inc. 17 &din, 39 AD3d 249, 250 (1'' Dcpt 2007). An account slated exists where a party to a contract receives bills or invoices and docs not protest within a reasonable time. 13~n-/riin,g /htnin,q, 16 AD3d 249, 250 ( l't Dept 2005). 1' With rcspcct l o this claim, the evidence submitted indicates an acceptance ol' h e terms of the tiieiiioraiida. 'I'liere is no proof of clelendanl's ol3.iectioii to thcsc tcriiis in any way. There is no dispute as to tlic amount of the balaiice owed, although there was an eflbrt on dcfcndant's part to dcciclc on ;I method of futurc repayment by defendant. Such ail effort never reached fLll fi I I mcnt . 'Ihc court shall grant sLitiiniary .j udginent on this claim, aiid c h y the cross motion to 5 [* 7] dim i s s, The other claims in the coinplaint are based on quasi-contract elements. That is, goods sold and delivered, uiisjustcnriclirnent and quantuiii valebant. I hcexistence ol a valid contract governing the subject matter oi thc dispute generally precludes recovery in quasi-contract for events arising out of thc same subject matter. ,Se;tlc LBL I, Inc. 11 Chlclnzcrn Xrch,s & C o., 5 NY3d 1 1. 23 (3005). For cxample, an iiiijust eiirichincnt cause of action is barred by the existence of a contract between parties. SPCJ, S c h l v Ckrshmun, 68 AD3d 426, 427 ( 1 Dept ZOOS). ~~ Sirice plaintiff has deinonstrated the existence of a contract betwucn thc parties, there is no rcason to provide reliel lor plaintiff under the second, Ibiirth and tifth causcs of action, which are based on quasi-contract. In its papers, plaintiff has stated that it shall not inovc on its last caiise ofaction, which is a claim for attorney s fccs. Accordingly, it is ORDE;,KI+~D plaintifi s motion for summary judgment on the coinplaint hcrcin is that granted with respect to h e lirst aiid third causcs of action aiid tlicsc causcs of action are severed and disniisscd, and the Clerk is directcd to cntcr judgmcnt in favor of plaintiff and against defendanl in the aiiiouiit o f $ 65,435.00, together with interest at the ratc of 9% per anrium from the dale ol statulory rate, as ,ntil tlic date of the decision or1 this motion, and thereafter at the calcirlated by the Clerk, togctlicr with costs and disbursements to bc taxed by thc Clerk upon submission o F an appropriate bill ol costs; arid i t is fiirther ORDEI<ED that plainlifYs motion for summary jiidgriient with respect t o the second, fourth, fifth and sixth causcs of action is denied; and it is Kiirther 6 [* 8] ORDERED that plaintiff's motion lo dismiss the couiiterclaim in the answer is grantcd and the counterclaim is disiiiisscd in its entirety as against plaintii'f; and it is further ORDERED that dehidant's cross motion to dismiss the lirsl a i d third causcs of action in the coinp I ai 11 i s den i ed . t DATED: 8 /z [ } / FILED AUG 04 2011 NEW YOHK COUNTY CLERKS OFFICE 7

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