E Global Solutions, Inc. v Arpielle Leasing Co., Inc.

[*1] E Global Solutions, Inc. v Arpielle Leasing Co., Inc. 2012 NY Slip Op 51150(U) Decided on June 25, 2012 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2012
Supreme Court, Queens County

E Global Solutions, Inc.

against

Arpielle Leasing Co., Inc.,



10753/2011



For the Plaintiff:

Michael F. Mongelli, II, P.C., by Martin C. Chow, Esq., 41-07 162nd St., Flushing, New York 11358

For the Defendant:

Richard A. Solomon, Esq., 290 Central Ave., Lawrence, New York

11559-8507

Charles J. Markey, J.

Plaintiff E Global Solutions, Inc. ("E Global") sells and services aftermarket engine filters for commercial equipment including active and passive diesel particulate filters. On January 18, 2011, defendant Arpielle Leasing Co. Inc. ("Arpielle"), which leases and sells construction equipment, ordered 17 ThermaCat filters (filters) from E Global via Purchase Order No.11618 in the sum of $247,900.00, which was later increased to $255,000.00 when defendant ordered additional brackets for the filters.

On February 22, 2011, defendant requested that plaintiff deliver 14 filters as soon as possible; consequently plaintiff divided Purchase Order #11618 into two separate invoices dated February 23, 2011: Invoice #2011EGS039 for 14 filters at a price of $210,000.00 and Invoice [*2]#2011EGS040 for 3 filters at a price of $45,000.00. The first 14 filters were received by defendant by March 18, 2011. Pursuant to the terms of the invoices, payment was due on March 10, 2011. Defendant made a payment in the sum of $50,000.00 on April 11, 2011 by check which notation acknowledged that a balance was due in the amount of $160,000.00 on Invoice #2011EGS039.

On August 5, 2011 defendant made one other payment in the amount of $55,000.00 by wire transfer. Herein, plaintiff seeks the balance of $105,000.00 on Invoice #2011EGS039 with interest from March 10, 2011. Plaintiff does not seek the account stated for Invoice #2011EGS040 in the amount of $45,000.00, since the plaintiff was able to resell the three filters represented by that invoice.

Plaintiff moves for summary judgment based on an account stated. The defendant moves to compel the return of the unused merchandise.

The plaintiff makes a prima facie showing that it is entitled to judgment as a matter of law on its fourth cause of action to recover on an account stated. The evidence establishes that plaintiff sent certain invoices to the defendant for goods sold and delivered, that defendant retained the invoices without objecting to them within a reasonable time, and that $ 105,000.00 remains unpaid (see, Interman Indus. Prods. v R.S.M. Electron Power, Inc., 37 NY2d 151 [1975]; Star Video Entertainment, LP v J & I Video Distrib., Inc., 268 AD2d 423 [2nd Dept. 2000]; Rona-Tech Corp. v LeaRonal, Inc., 254 AD2d 473 [2nd Dept. 1998]; see also, Kabbalah Jeans, Inc. v CN USA Intl. Corp., 26 Misc 3d 1241(A), 2010 WL 1136511, 2010 NY Slip Op 50507(U) [Sup Ct Kings County 2010]; M. Slavin & Sons Ltd. v Glatt Gourmet Cuisine, Inc., 23 Misc 3d 18 [App T. 2nd Dept. 2009]).

The defendant fails to raise a triable issue of fact that it has not defaulted in payment. The conclusory allegation of the defendant that plaintiff did not provide technical support to defendant is not part of the terms of the account stated and is unsupported by any evidence in the record. Inasmuch as the invoices were fully integrated documents that set forth all the essential terms of the parties' agreements regarding the sale of the filters, defendant's claim that technical support be provided is barred under the parol evidence rule, as codified in section 2-202 of the Uniform Commercial Code (Sunkyong Am. v Beta Sound of Music Corp., 199 AD2d 100 [1st Dept. 1993]; see also, Intershoe, Inc. v Bankers Trust Co., 77 NY2d 517 [1991]; Raj Jewelers v Dialuck Corp., 300 AD2d 124 [1st Dept. 2002]; M. Slavin & Sons Ltd. v Glatt Gourmet Cuisine, Inc., 23 Misc 3d 18, supra).

Accordingly, the plaintiff is entitled to summary judgment on its fourth cause of action for an account stated in the amount of $105,000.00 with interest from March 10, 2011. In light of the foregoing, defendant's motion to compel the return of merchandise is denied as academic.

The foregoing constitutes the decision, opinion, and order of the Court.

_______________________________

J.S.C.

Dated: June 25, 2012