Bluefin Wear, Inc. v Tuesday's Child Boutique, Inc.

[*1] Bluefin Wear, Inc. v Tuesday's Child Boutique, Inc. 2011 NY Slip Op 52231(U) Decided on December 14, 2011 Supreme Court, Kings County Rivera, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2011
Supreme Court, Kings County

Bluefin Wear, Inc., d/b/a Cacharel,, Plaintiff,

against

Tuesday's Child Boutique, Inc., Defendant.



13766/10



Attorney for Plaintiff

Gerald Slotnik, Esq.

Meyers, Saxon & Cole

3620 Quentin Road

Brooklyn, New York 11234

(718) 339-3330

Attorney for Defendant

Laurie E. Mermelstein, Esq.

Seidemann & Mermelstein

974 East 27th Street

Brooklyn, New York 11210

(718) 692-1013

Francois A. Rivera, J.

By notice of motion filed on May 24, 2011, under motion sequence number four, defendant Tuesday's Child Boutique, Inc. has moved pursuant to CPLR 3211(a)(5) for an order dismissing the instant amended complaint as time-barred before interposing an answer to the complaint.

Plaintiff opposes the motion.

BACKGROUND

On June 3, 2010, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. On July 13, 2010, defendant moved to dismiss and plaintiff cross-moved to amend the complaint. By order dated December 17, 2010, the court denied both motions without prejudice to renew within thirty days. Thereafter, by an order stipulated to by the parties dated April 27, 2011, plaintiff was granted leave to file an amended [*2]complaint, the amended complaint was deemed served upon defendant as of April 29, 2011, and defendant's time to answer or otherwise move in response to the amended complaint was extended to May 31, 2011.

Plaintiff's amended verified complaint contains five numbered paragraphs alleging two causes of action. In the first cause of action, the amended complaint alleges that plaintiff, a French corporation which manufactures and distributes children's clothing, sold and delivered various items of children's clothing to defendant between January 2006 and July 2006, but that defendant failed to pay for such merchandise and, as of July 22, 2006, owed it a balance of $44,017.63. In the second cause of action, the amended complaint alleges that plaintiff rendered monthly accounts of indebtedness to defendant and that such accounts were accepted by defendant without objection, resulting in an account stated for the aforementioned amount.

MOTION PAPERS

Defendant's motion papers consist of a notice of motion, an affidavit of defendant's president Rachel Fischer, an attorney's affirmation, and thirteen exhibits labeled A through M. Exhibit A is a copy of the original summons and complaint of the instant action. Exhibit B is a copy of the amended summons and complaint. Exhibit C is a printout from an online translation Web site indicating that the French word "jours" translates to the word "days" in English. Exhibit D is a list of the nine invoices upon which this action is based.

These invoices are attached independently as exhibits E through M. Defendant also includes a memorandum of law in support of the instant motion.

Plaintiff has opposed the motion with an affirmation of counsel, an affidavit of plaintiff's Chief Executive Officer Guillaume Bousquet, and two exhibits numbered 1 and 2. Exhibit 1 is a copy of the nine invoices which match the invoices submitted by defendant, plus, a copy of three additional documents labeled "Avoir." Exhibit 2 consists of an excerpt, denominated as the "statement of account," from plaintiff's ledger, as well as Mr. Bousquet's reply affidavit, dated November [date illegible], 2010, in opposition to defendant's original motion to dismiss. Mr. Bousquet's reply affidavit, in turn, includes exhibit A containing an "Avoir" document with the balance of ($597.52), and Mr. Bousquet's opening affidavit, dated October 29, 2010, in opposition to defendant's original motion to dismiss.[FN1]

Defendant submits a reply attorney's affirmation with four exhibits labeled A through D. Exhibit A is a copy of the statement of account submitted by plaintiff. Exhibits B through D are copies of the "Avoir" documents.

[*3]LAW AND APPLICATION

To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired(Fleetwood Agency, Inc. v. Verde Elec. Corp., 85 AD3d 850, 851 [2d 2011] citing Sabadie v Burke, 47 AD3d 913 [2d 2008]).

Only if such prima facie showing is made will the burden then shift to the plaintiff to aver evidentiary facts establishing that the case falls within an exception to the Statute of Limitations" (Swift v. New York Med. Coll., 25 AD3d 686, 687 [2d 2006]). While the "facts alleged in a complaint are accepted as true on a motion to dismiss, are afforded a liberal interpretation, and are viewed in the light most favorable to the plaintiff" (Symbol Tech., Inc. v. Deloitte & Touche, LLP, 69 AD3d 191, 195 [2d 2009]), the court may properly consider documentary evidence submitted by the defendant (see Lessoff v. 26 Ct. St. Assoc. LLC, 58 AD3d 610, 610-611 [2d 2009]), as well as the plaintiff's affidavit submitted in opposition to the defendant's motion to dismiss (see LeBeau v. Hulse, 280 AD2d 649 [2d 2001]).

There is no dispute that the action was commenced on June 3, 2010, when plaintiff filed the summons and verified complaint with the Kings County Clerk's office. To show that the commencement was untimely, defendant must show the appropriate limitation period expired before June 3, 2010. CPLR 203(a) provides the general method of computing periods of limitation and sets forth in pertinent part that the time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed.

Defendant contends that the four-year statute of limitations set forth in UCC 2-725 (1) applies in this action. Plaintiff contends that the six-year statute of limitations set forth in CPLR 213(2) applies. CPLR § 213 (2) provides in pertinent part as follows: Actions to be commenced within six years: where not otherwise provided for; on contract; on sealed instrument; on bond or note, and mortgage upon real property; by state based on misappropriation of public property; based on mistake; by corporation against director, officer or stockholder; based on fraud. The following actions must be commenced within six years: ...2. an action upon a contractual obligation or liability, express or implied, except as provided in section two hundred thirteen-a of this article or article 2 of the uniform commercial code or article 36-B of the general business law.

While is true that the six-year statute of limitations applies to an action based on a breach of contract claim, CPLR 213(2) specifically exempts from its reach actions brought under Article 2 of the Uniform Commercial Code. Section 2725 of the Uniform Commercial Code provides in pertinent part as follows:Statute of Limitations in Contracts for Sale. (1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such [*4]performance the cause of action accrues when the breach is or should have been discovered.

...

UCC 2-725 (1), which applies to actions for breach of contract for the sale of goods, provides for a four-year statute of limitations. Although the amended complaint also asserts a claim for an account stated, such claim has no independent significance because "the causes of action in the complaint are all premised on the same allegation, namely, nonpayment for goods, thus invoking the four-year statute" (Wuhu Import & Export Corp. v. Capstone Capital, LLC, 39 AD3d at 315; see also Herba v. Chichester, 301 AD2d 822, 823 [3d 2003]). Having determined the applicable statute of limitations is four years, the court now turns to the merits of defendant's motion.

Here, in support of the instant motion, defendant submits nine invoices upon which the amended complaint is predicated. Plaintiff, through Mr. Bousquet's affidavit in opposition, acknowledges that the invoices submitted by defendant are in fact the actual invoices upon which the amended complaint is based and that "[t]he due dates are printed on the invoices."[FN2] The last of the nine invoices (No. 01413, dated March 7, 2006) has the due date of April 22, 2006.[FN3] Under UCC 2-725 (2), "a cause of action accrues when the breach occurs." Here, plaintiff's claim accrued when defendant was required, but failed, to pay the amount indicated on each invoice by its respective due date (see Matter of Village of Scarsdale v. New York City Water Bd., 33 AD3d 1011, 1013 [2d 2006]).

Accordingly, defendant has established through undisputed documentary evidence, the validity of which is corroborated by plaintiff's own affidavit and exhibits, that the statute of limitations for plaintiff's claims expired on April 22, 2010, i.e., four years after the due date of April 22, 2006 for its last invoice. Thus, the burden shifts to plaintiff to "aver evidentiary facts establishing that the action was timely or to raise an issue of fact as to whether the action was timely" ( Lessoff v. 26 Ct. St. Assoc. LLC, 58 AD3d 610, 610-611 [2d 2009]).

Plaintiff, in opposition, submits three documents with the notation "Avoir."[FN4] Plaintiff [*5]argues that because the last of the "Avoir" documents provides for the payment due date of July 22, 2006, this action was timely commenced by filing a summons and complaint on June 3, 2010. After conducting its own examination of the "Avoir" documents, however, the court rejects plaintiff's argument because these documents are not invoices. By way of illustration, plaintiff's position that "Invoice No. 01508 dated June 7, 2006 . . . shows that $1,597.52 is due July 22, 2006" is factually unsupported, as such document, which is labeled "Avoir," indicates a "net to pay" amount of ($597.52), rather than the positive amount of $1,597.52 as plaintiff claims.[FN5] Overall, plaintiff has failed to offer any sound basis as to why the court should view the "Avoir" documents as invoices demanding payment from defendant, rather than as credit memoranda reflecting the amounts owed by plaintiff to defendant. In sum, plaintiff has not satisfied its burden by offering any objective evidence either establishing that this action is timely or raising an issue of fact as to whether this action is timely.

CONCLUSION

Defendant's motion for an order, pursuant to CPLR 3211(a)(5), dismissing the amended complaint as time-barred is granted, and the amended complaint is dismissed in its entirety.

The foregoing constitutes the decision, order, and judgment of this court.

Enter________________________________x

J. S. C.

Enter forthwith________________________________x

J. S. C. Footnotes

Footnote 1:None of Mr. Bousquet's affidavits, which are notarized in France, are accompanied by an appropriate certificate of conformity in accordance with CPLR 2309(c) and, therefore, are considered unsworn for the CPLR purposes (see Green v Fairway Operating Corp., 72 AD3d 613, [1d 2010]). Nevertheless, because plaintiff's failure to comply with CPLR 2309(c) can be easily corrected nunc pro tunc and does not prejudice "a substantial right of a party" (CPLR 2001 and 2101[f]), it is a mere defect in form (see Matter of MBNA Am. Bank, N.A. v Stehly, 19 Misc 3d 12, 13 [App Term, 2d & 11th Jud Dists 2008]). Accordingly, in the absence of a specific objection by defendant to the omission of the certificate of conformity, the defect is disregarded (id. at 13-14).

Footnote 2:See Affidavit in Opposition to Defendant's Motion to Dismiss, dated Oct. 29, 2010, ¶ 4.

Footnote 3:The numbers, dates, and due dates of the eight remaining invoices are: No. 01220, dated Jan. 19, 2006 and due Mar. 6, 2006; No. 01222 dated Jan. 19, 2006 and due Mar. 6, 2006; No. 01260, dated Feb. 3, 2006 and due Mar. 18, 2006; No. 01262, dated Feb. 3, 2006 and due Mar. 18, 2006; No. 01395, dated Feb. 22, 2006 and due Apr. 6, 2006; No. 01397, dated Feb. 22, 2006 and due Apr. 6, 2006; No. 01411 dated Mar. 7, 2006 and due Apr. 22, 2006; and No. 01412 dated Mar. 7, 2006 and due Apr. 22, 2006.

Footnote 4:The word "Avoir" is the French term for "assets" (see Pocket Business French Dictionary, at 116 [3d ed 2003]). Each of the "Avoir" documents indicates that a negative amount is due from defendant to plaintiff; in other words, that plaintiff owes money to defendant, rather than vice-versa. The numbers, dates, due dates, and the negative balance of the "Avoir" documents are: No. 01458, dated Mar. 9, 2006 and due Apr. 24, 2006, in the amount of ($718.77); No. 01503, dated Apr. 24, 2006 and due June 8, 2006 in the amount of ($25.22); and No. 01508, dated June 7, 2006 and due July 22, 2006, in the amount of ($597.52).

Footnote 5:See Reply Affidavit in Opposition to Defendant's Motion to Dismiss, ¶ 4 (part of Exhibit 2 to the Affirmation in Opposition to Defendant's Motion to Dismiss), and Exhibit A thereto.