Walter Boss, Inc. v Ron Calli Freight Co., Inc.

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Walter Boss, Inc. v Ron Calli Freight Co., Inc. 2018 NY Slip Op 33195(U) December 8, 2018 Supreme Court, Suffolk County Docket Number: 020146/2012 Judge: James Hudson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] ·' .. _I' . r ~ ' \ l>@reme VJ.,oun ofthe (ountg of$uffelR COP'T I 1 $tate of Neur 'lforlt - Fart ml ffiemoran6um Decision A~er 't'rla( PRESENT: HON. JAMES HUDSON Acting Justice of the Supreme Court x----------------------------------------------------------x WALTER BOSS, INC., PINES PROPANE CORP., and PINES AND POOLS, INC., INDEX N0. :020146/20 12 MARSHALL M . STERN ESQ. JUDITH M. STERN, ESQ. Attorney for Plaintiffs 17 Cardiff Court Huntington Station, NY 11746 Plaintiffs, -against- RONCALLI FREIGHT COMPANY, INC. d/b/a COASTLINE FREIGHT, PINES COMMERCIAL PROPERTIES, LLC, PINES OPERATIONS, LLC, and PINES ACQUISITION HOLDINGS, LLC, as Successor in Interest by Merger to PINES COMMERCIAL PROPERTIES, LLC and PINES OPERATIONS, LLC, PATRICIA BYRNE BLAIR, ESQ. Attorney for Defendants 9-B Montauk Highway Bluepoint, NY 11715 Defendants. x----------------------------------------------------------x The matter at hand is a trial arising from a dispute between the Plaintiff and Defendant companies over the sums purportedly owed for services rendered to each other over a course of years. The non-jury trial took several days of testimony and the presentation of evidence. The Court would be remiss if it did not commend Ms. Donnenfeld, Ms. Blair and Mr. Stern for the ab le manner in which each of them presented arguments on behalf of their respective clients. Their written Briefs were thoughtful , scholarly and matched only by their skill in the Courtroom. Just as the learned Tribonian warned us that multitudo imperitorum perdit curiam*, the Court is ever mindful, indeed gratefu l, for the converse observation-excellent practitioners uphold the judicial forum. Page 1 of 27 [* 2] Index No.:02014612012 Walter Boss, et al. v Ronca!!i Freight, et al. Plaintiffs originally had five causes of action. The first claim was against Pines Commercial Properties LLC, Pines Operations LLC, Eric Von Kuersteiner and Anthony Roncalli for goods and services provided. The second sounded in breach of contract arising from a purported oral settlement of claims that Boss Inc. et al. had against the Defendants in return for $ 140,000.00 in shipping credits from Coastline Freight. The third claim was for damages resulting in increased costs to the Boss Parties as a result of procuring alternative shipping providers. The fourth claim was for an injunction preventing the Defendant Roncalli Freight d/b/a Coastline Freight from refusing to carry the Plaintiffs' goods and personnel and finally a fifth cause of action seeking damages for the alleged wrongful detention of Plaintiffs ' goods. By the time of trial, however, all but the first and second causes of action against the Defendants were resolved. Mr. Von Kuersteiner and Mr. Roncalli are no longer being sued in their individual capacities. Plaintiff requests the Court grant j udgment against the remaining Defendants for: ( l) breach of the settlement agreement in the amount of $140,000.00 less Coastline Cre~it received ($70,689.27 per Plaintiffs' Exhibit 33) for a total of $63,3 10.73 plus interest since July 3rd, 2012; or (2) In the event that the Court does not fi nd the settlement agreement enforceable, "then for breach of contract for goods and services provided in the amount of $219, 14 1.67 less offset for rent in the amount of $84,677.42 for a total of$134,464.25 plus interest since January 11, 2010." The Defendants' counterclaims are for breach of contract, an account stated and for storage and service fees. Specifically, the Defendants argue that the sum of $125,418.27 is due to Roncalli Freight from Walter Boss Inc., and $86,620.19 due to Roncalli Freight from Pines Propane Corp. (Defendants' Exhibits D and C) for unpaid shipping, servicing and storage costs for a total of$214,038.46. The salient testimony and evidence consisted of the following: Mr. Walter Boss was the first witness called for the Plaintiffs. Upon observing his Page 2 of 27 [* 3] Walter Boss, et al. v Ro11cal/i Freight, et al. Index No. :02014612012 demeanor and listening to his answers, the Court found him to be in all respects a forthright and hence credible witness. The Court also heard the testimony of Ms. Karen Boss, and Mr. Steven Young. For the Defense, the witnesses consisted of Mr. Von Kuersteiner and Ms. Patricia Napolitano. The Court will discuss and analyze the evidence initially as it applies to the claims of the Plaintiffs. Mr. Boss is the so le owner of Walter Boss Inc., a construction company. He is also the sole owner of Pines Propane Corp. and Pines and Pools Inc. These shall be referred to collectively as "The Boss Parties." In order to operate his businesses, Mr. Boss requ ired the transportation of s undry materia ls to Fire Island from Sayville. He uti lized Tony's Barge Service and Coastline Freight ( d/b/a of Roncall i Freight which acquired Coastline Freight Inc.). There came a time in 2003 through 2004 that he started doing business with Mr. Eric Von Kuersteiner and Mr. Anthony Roncalli. They were the principals of the Defendants Pines Commercial Properties, LLC and Pines Operations, LLC (hereinafter referred to as the "EVK Parties"). One aspect of Mr. Boss' interaction with the Defendants involved work on a building known as "The Pavilion." Mr. Boss detailed that he performed a considerable amount of work for the Defendants. This was substantiated via a series of invoices (Plaintiffs' Ex hibit 64) which totaled $219. 141.67 between the years 2004 and 2010. Although Defense Counsel, during cross-examination skillfully attempted to cast doubt as to the veracity of the invoices, we find that they w ithstand scrutiny and substantiate Mr. Boss' testimony. During the direct testimony of Mr. Von Kuersteiner (Transcript 04/29/20 16, pp.112-114 ), he attempted to challenge the bill under Invoice #3762 (Plaintiffs' Exh ibit 64). He claimed that this was for work performed on installing a swimming pool at the Hotel Ceil. The construction work had to be redone because it was in violation of FIPPOA Code. This was rectified by another company's services for completion and Page 3 of 27 [* 4] Walter Boss, el Index No.:02014612012 al. v Ronca/Ii Freight, et al. incurred a $7,600.00 cost to the Defendants. As described infra, the Court was less than persuaded by Mr. Von Kuersteiner's testimony. Between 2004 and 2009 the Boss companies provided construction and maintenance services (as well as materials) for th e Defendants and the realty they controlled. The properties were extensive, consisting of buildings located at 126 Beachill, 28 Fire Island Blvd., 428-9 Ocean, Aqua Gym, Bay Bar LLC, Pines Bamboo LLC, Blue Whale Restaurant LLC, Hotel Ceil LLC, Maximus Construction, EYK Pavilion LLC, Staff House, Strip Mall and Yacht Club, Pines Commercial Properlies LLC, and Pines Operations LLC (Stipulated Facts, para 9). At the same time, The Boss Parties were using the services of Coastline Freight and occupying office space in an EYK Parties owned property, specifically a location owned by Rohan Holdings LLC, owned by Mr. Von Kuersteiner and Mr. Roncalli, beginning January 1st, 2005 . The rent was originally $20,000.00 per year. The Land lord, Helm's Deep Holdings LLC, raised the rent to $60,000.00 per annum (Plaintiffs ' Exhibit 44). The Plaintiffs refused to pay this at which point a notice to terminate was sent to Mr. Boss (Plaintiffs' Exhibits 45 and 46). When the written lease terminated on January I si, 2006, the tenancy continued on a month to month basis (Stipulated Facts, para 11). With the passage of time, a misunderstanding arose between the Boss Parties and the EVK Parties as to the value of their respective services. The Boss Parties did not pay any rent between 2006 and 2010. The Parties met January 11•h, 20 I 0. The Boss Parties prepared a letter and spread sheet detailing their claims fo r moneys owed for services and offset for rent. Mr. Boss claimed he was owed $248,468.76. It is undisputed that a formal written agreement was never entered into. Mr. Boss testified that it was hi s understanding that when the EYK Parties divested themselves of their holdings on Fire Island, his businesses would get paid. At the time the properties were sold, Mr. Yon Kuersteiner stated that the Plaintiffs owed outstanding rent in the amount of$ l 4 l ,662.00 (Testimony 4/28/2016, p.89 line 12). Mr. Yon Kuersteiner also testified, inter alia, that Plaintiffs owed the Defendants Pine Operations Page 4 of 27 [* 5] Walter Boss, et al. v Ro11calli Freight, et al. Index No.:02014612012 LLC, Pines Commercial Properties LLC and Pine Acqu isition Holdings LLC a sum of $39,177.00 (4/28/2016 transcript, p.127 Jine 25 and p.133 line 20). On September 29th, 2010, Mr. Boss and Mr. Von Kuersteiner met. to discuss the dispute over the purported monies owed between the two factions. M r. Von Kuersteiner stated the meeting was " ... to get a final number that we could agree on for what was allegedly due to the Walter Boss companies" ( 412912016 ,Transcript p.91 ). By the time of the September 20 10 meeting, the EVK Parties had so ld all of their commercial properties (4/29/2016 ,Transcript p.91 ). This narrowed the possibility ofi nteraction between the Parties to the services ofRoncalli Freight vis-a-vis shipping for the Boss companies. It is undisputed that no settlement was reached at the September 20 I0 meeting. On the following day, Mr. Von Kuersteiner made a settlement offer in writing to the Plaintiffs (Plaintiffs' Exh ib it 16). This offer, by its terms, was conveyed on behalf of Von Kuersteiner and Roncalli individually and on behalf of Pines Operations LLC and subsidiaries as well as Pines Commercial Properties and subsidiaries. Roncalli Freight was not mentioned in the document. Indeed, the sum due and owing Coastline was stated separately. Mr. Boss rejected this offer (Plaintiffs' Exhibit 18). He did, however pay the outstanding shipping charges for Coastline on January 5t11, 2011 (Plaintiffs' Exhib its 19 and 20). From that point onward, the Boss entities could not use Coastline on a credit basis. They were required to pay cash for each shipment (Transcript 4/27/2016, p.3 and 4/28/2016 pp.11-12). The testimony of Ms. Patricia Napolitano shed little light on the amount of the disputed claims. Ms. Napolitano was the bookkeeper for Ronca Iii Freight. Additionally, she performed other bookkeeping duties for the EVK Parties at Mr. Von Kuersteiner's behest. Tasked with reconcil ing the accounts of Roncalli w ith the claims of the Boss Parties, she dutifully attempted same. In comparing the records, however: " ... we could just never balance because every time they gave me a new ledger there were either invoices that were on there that was off all of a sudden. New invoices appeared with an older date. Invoices with the same number that had, all of a sudden, Page S of 27 [* 6] Walter Boss, et al. v Ronca/Ji Freight, el al. Index No.:02014612012 a different amount. It was very tedious. Q. To the best of your knowledge, Miss Napolitano, was the reconciliation ever completed? A. That could never be completed. Never. . ." (Transcript 412912016, p. l 0). The Parties met again in May of2011. Mr. Boss, Ms. Boss and Eric Von Kuersteiner were present (Testimony ofMr. Boss 4/27/2016, Transcript pp.4-5). Mr. Boss stated that Mr. Von Kuersteiner and himself agreed to resolve the outstanding dispute over the Boss entities services for $140,000.00 in shipping credits to be provided by Coastline (Transcript 4/27/20 16, pp.5-7). 4/28/2016, pp.12-14). This claim is substantiated by Ms. Boss' testimony (Transcript The transcript of Mr. Boss, however, contains two additional important points: (I) Some claims were left unresolved ( 4/21/16 transcript pp.40-41); and (2) additional language was added to a proposed written agreement which was not signed (4/27/2016 transcript, pp.42-43). Mr. Von Kuersteiner denies that this agreement was reached. The shipping credit of $140,000.00 was, according to him, part of an attempted resolution, not an admission of contractual liability (Kuersteiner transcript 4/28/2016, p.129). He also said that the Boss entities owed Pines Commercial Properties $39, 177.00 (Id. p. 133). Mr. Kuersteiner also averred that Karen Boss had interfered with Roncalli's operations which caused a 50% decrease in revenue to that company (Id. pp.134-135). During his testimony, Mr. Von Kuersteiner claimed that the offer was conditioned on the Boss entities observing " . .. the rules of the FIPPOA . .. [and that] Karen [Ms. Boss] would stop interfering with our business (Transcript 4/28/ 2016, pp. 96-97). Mr. Von Kuersteiner also indicated that Walter Boss Inc. et al. was cut off from shipping on Roncalli Freight because the outstanding bills were not paid. (Transcript 4/28/2016, pp.118-127). In observing Mr. Kuersteiner on the witness stand and applying the Court's presumed powers of discernment, we found his recall of the interactions with Mr. Boss to be faulty to Page 6 of 27 [* 7] Waller Boss, et al. v Ronca/Ii Freight, et al. Index No.:02014612012 the point where it has been discarded in our analysis of the proof (Morales v. Inzerra, 98 A.D.3d484, 485, 949 N.Y.S.2d 433 , 436 [2nd Dept. 2012]). To quote theBard of Avon, Mr. Von Kuersteiner " ... remember[ed] with advantages." (Henry V Act 4 Scene III). Ms. Blair, as attorney for the EVK Parties sent a letter to Mr. Boss in May of 2012 offering to settle claims in a proposed written agreement (Plaintiffs' Exhibit 30). This was to be a $60,000.00 Coastli ne credit in place of the $140,000.00 credit. Defendants also took the position that Coastline was separate entity and outside of the settlement. Mr. Boss' understanding was that his contract (as he deemed it) with Mr. Von Kuersteiner was for Coastline to off-set monies that the Boss Parties were owed by Pines Commercial Properties LLC and Pines Operations LLC. On July 3'd, 2012, Roncalli Freight stopped accepting shipments from the Boss Parties and would not accept shipping by Walter Boss Inc. and Pines Propane Corp., until accounts were brought current. Significantly, Walter Boss testified that neither Walter Boss Inc., Pines Propane Corp., nor Pines and Pools ever did work for Roncalli Freight Company (Transcript 4/2712016 p.45). Mr. Steven Young also testified to the same effect (Transcript 4/28/2016, p.69). The Court will now discuss the evidence pertaining to Defendants Counterclaims. Roncalli Freight Company, Inc. was incorporated on July 2211d, 2009. Its shareholders were Eric Von Kuersteiner and Anthony Roncalli. Roncalli Freight Company, Inc. acquired the assets of Coastline Freight & Charter on March 10°1, 2010 and commenced operations on April !51, 2010. The proof adduced at trial included monthly statements containing bills for freight shipping were sent from Roncalli to Walter Boss Inc. and Pines Propane Corp. on and between the dates of July 151, 2012 to April of 2016. These total $212,038.00 (Von Kuersteiner's Testimony 4/28/2016, p. l 05). Mr. Young stated that no objections were received concerning them (Transcript 4/28/2016, p.67). Ms. Napolitano, whom we found to be credible, also testified that neither Walter Boss Inc. nor Pines Propane Corp. ever Page 7 of 27 [* 8] Walter Boss, er al. v Ro11cal/i Freight, et al. Index No.:02014612012 objected to the monthly bills/invoices sent to them (Transcript 4/29/2016, p.16). On August I 5', 20 12, Roncalli Freight Company d/b/a Coastline Freight, sent Walter Boss Inc. an. invoice for storage fees, unpaid shipping charges and service fees. Defendants' Exhibit "D" manifested an outstanding bill for $125,418.27 from Walter Boss Inc. and Defendant's Exhibit "C" was for $86,620.19 from Pines Propane Corp . for a total of $214,038.46. On direct examination, Ms. Boss admitted that Boss entities received invoices from Roncalli Freight (Transcript 4/27/2016, p.14). Defendants' Exhibit "I" is a Coastline Freight credit application which reads in part: "All freight charges are payable upon invoicing. In the event of default ofpayments by customer, customer further agrees to pay reasonable attorney fees, collection fees and expenses necessary for the co llection of any sums due in addition to the balance owed. A service charge of 2% per month will be added on all past due balances." Neither Walter Boss Inc. nor Pines Propane Corp. paid for freight shipping from May 2011 through June 2012. This caused the Defendant Ronca Iii to stop shipping for the Plaintiffs (Testimony of Eric Von Kuersteiner 4/28/2016, p. l 04 ). Mr. Von Kuersteiner also stated that the Pia inti ffs never objected to any of the bills (Id. p. I 05). Mr. Von Kuersteiner also indicated that the Plaintiffs Walter Boss Inc. and Pines Propane Corp. never performed any services nor provided any products for the Defendant Roncalli Freight Company (Id. at p. l 07). Moreover, Mr. Kuersteiner stated that he had incurred $66,227 .00 in legal fees as a result of attempting to collect the unpaid ba lance of the shipping charges (Id. at p.11 ). Prior to addressing the Plaintiffs' argument in favor of its Causes of Action we will consider a contention by Ms. Blair, regarding certain documentary exhib its by the Plaintiffs (specifically Exhibits 62, 63 and 64). Defense Counsel argues that the Plaintiffs' exhibits are insufficient proof as to any sums allegedly due to them from the Defendants. In support of this contention, Counsel Page 8 of 27 [* 9] Index No.:02014612012 Walter Boss, el al. v Ronca/Ii Freight, et al. relies on the holding in B(lfll Medic(I/ Supply, Inc. v. Utica Mut. Ins. Co., 23 Misc.3d 14l(A), 889 N.Y.S.2d 881 [App Tenn 1st, 11th and 13th JDs 2009] Wherein the Court stated: "At trial, 'it remained Plaintiffs' burden to proffer evidence in admissible form, i.e., by introducing into evidence the claim form[s] in question by, inter alia, calling a witness to lay a foundation for the admissibility of the claim form[s] as ... business record[s], which plaintiff failed to do. Accordingly, in light of Plaintiffs' failure to establish the admissibility of its claim form[s] as ... business record[s], plaintiff did not establish a prima facie case and defendant was entitled to judgment dismissing the complaint'(Bajaj v. General Assur. Co., 18 Misc.3d 25, 28-29 (App Term, 2d & 11th Jud Dists 2007] [citation omitted]; see also Art of Healing Medicine, P.C. v. Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008])."' Defendants also cite to Johnson v. Lutz 253 NY 124 (1930) which interpreted the precursor statute to CPLR 4518 stating the well settled rule that proffered business records should be precluded unless the Court finds: " ... that it was made in the regular course of any business, and . that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event, or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term business shall include business, profession, occupation and calling of every kind." (Id. 125-126). Ms. Blair relies on the aforementioned authority to call into question the admissibility of the documents prepared by the Boss Parties. Although Counsel showed inconsistencies in some of the documentation submitted by Plaintiffs during the course of the proceeding, the Court is ultimately satisfied that its ruling in admitting the Exhibits as business records was correct (Fed. Exp. Corp. v. Fed. Jeans, Inc., 14 A.D.3d 424, 425, 788 N.Y.S.2d 113, Page 9 of 27 [* 10] Walter Boss, el al. v Roncal!i Freight, et al. Index No.:02014612012 113 (l5t Dept. 2005); Plymouth Rock Fuel Corp. v. Leucadia, Inc., 117 A.D.2d 727, 728, 498 N.Y.S.2d 453, 454 [2nd Dept. 1986]). We will not revisit the evidentiary rulings made at trial. Plaintiffs' claim the existence of an oral agreement with the Defendants and cite to Kramer v. Greene 142 AD3d 438,36 N.Y.S.3d 448 [I st Dept. 2016]; Matter of Express Industries & Term Corp. v. N.Y.S. Dept. of Tnmsp. 93 NY2d 584, 693 N.Y.S.2d 857 [1999]; and Cobble Hill Nursing Home, Inc. v. Henry and Warren Corp., 74 NY2d 475, 548 N.Y.S.2d 920 [ 1989]. Specifically, Ms. Donnenfeld contends that: "The actions ofthe EVK Parties and the Boss Parties subsequent to the May 2011 meeting demonstrate that an agreement was reached - EVK's extension of a $140,000.00 shipping credit in exchange for the Boss Parties forbearance in pursuing their claims in Court or otherwise" (Post Trial Memo, p.16). She also asks the Court to consider the testimony of Mr. Steve Young (responsible for billing for Coastline Freight) who said that the Boss Parties were permitted to ship without payment between May of201 land June of2012 (Transcript 4/28/16, pp.51-52). It has also been clearly established that Mr. Von Kuersteiner was aware of this state of affairs (Transcript 4/28/16, pp.102-103). The Defense argues that the proof adduced at trial cannot sustain a finding that an oral contract was entered into between the Boss Parties and the E VK Parties for a $140,000.00 sh ipping credit. Ms. Blair, draws our attention to the email exchange between the Parties (Plaintiffs' Exhibits 25 and 28) demonstrating that counter proposals were rejected and thus , she posits, a settlement agreement was never finalized. The testimony of Mr. Young indicates that the reason Boss Inc. and Pines Propane were still allowed to ship despite outstanding balances was because of ongoing negotiations between "Eric and Walter" (4/28/2016 Transcript, pp.51-52). The Court must note, however, that we found Mr. Young's demeanor on the stand to be very poor and indicative of a bias against Mr. Boss. This limited Page 10 of 27 [* 11] Index No. :02014612012 Walter Boss, et al. v Roncalli Freight, el al. the usefulness of his statements. In support of this contention, Ms. Blair cites to numerous authority. They shall be set forth and discussed ad seriatim (More v. New York Bowery Fire Ins. Co., 130 N .Y. 537,545-547, 29 N.E. 757 [1892]): "There must be actual acceptance, or there is no contract. ... [a] party cannot be held to contract where there is no assent. Silence operates as an assent and creates an estoppel only when it has the effect to mislead" S.S.!. lnv'rs Ltd. v. Korea Tungsten Min. Co., 80 A.D.2d 155, 157-58, 438 N.Y.S.2d 96 (1st Dept. 1981), ajfd, 55 N.Y.2d 934, 434 N.E.2d 242 [1982]) held that: "[When] all the essential terms and conditions of an agreement have been set forth in informal written memoranda and all that remains is their translation into a more formal document, such an agreement will be capable of specific performance" (Brause v Goldman, IO AD2d 328, 332, affd 9 NY2d 620). Here, however, all the essential terms and conditions have not been memorialized in the informal writings between Plaintiff and Defendant KTM. Plaintiffs bid was not accepted and, thus, there was no mutual assent as to the purchase price for this real property. In this posture there certainly was not, nor could there have been, a complete meeting of the minds. "[When] the parties have clearly expressed an intention not to be bound until · their preliminary negotiations have culminated in the execution of a formal contract, they cannot be held until that event has occurred. The n ecess~ry finality of assent is lacking" (Brause v Goldman, supra, p.332). The cumulative effect of the correspondence and conduct of these parties can only be categorized as indicative of an intent to conduct further negotiations. Since no formal contract was subsequently entered into, no binding legal relationship was ever established." In Gomez v. Bicknell, 302 A.D.2d 107, 116, 756 N.Y.S.2d 209 (2nd Dept.2002): "Silence, absent a duty to speak, cannot constitute an acceptance" (see Matter of Albrecht Chem. Co. (Anderson Trading Corp.), 298 NY 437, 440; Josephine & Ant/tony Corp. v Horwitz, 58 AD2d 643; Karlin v. Avis, 457 F2d 57, 61-62 [2d Page 11 of 27 [* 12] Walter Boss, et al. v Roncalli Freight, et al. Index No.:020146/2012 Cir], cert denied 409 US 849; L.B. Kaye Assoc., Ltd. v. Jews for Jesus, 677 F Supp 160, 166, ajfd 854 F2d 1314 [2d Cir]; cf. .!.P.A. Realty v Citi Fin. Mtge. Co., 293 AD2d 447; Russell v Raynes Assoc. Ltd. Partners/tip, 166 AD2d 6, 15)." Defense Counsel urges the Court to apply the holding in Trevor v. Wood, 36 N.Y. 307, 310 (1867): "The mere determination of the mind unacted on can never be an acceptance." (Id. p.310). Ms. Blair also cites a case containing the expression of the brightest stars in the judicial firmament: Sokoloff v. Nat'/ City Bank ofNew York, 239 N.Y. 158, 170, 145 N.E. 917 (1924), in which the immortal Cardozo, speaking for a unanimous Court containing such luminaries as Judges Hiscock, Pound, McLaughl in, Crane, Andrews and Lehman, in turn quoted Oliver Wendell Holmes' declaration in O'Donnell v. Clinton, 145 Mass. 461 'Assent in the sense of the law is a matter of overt acts, not of inward unanimity in motives, design or the interpretation of words' (llolmes, J., O'Donnell v. Clinton, l 45 Mass. 461; White v. Corlies, 46 N. Y. 467; I Williston, Contracts, § 95; Anson, Contracts, § 34). Defense Counsel's citation to the rule in Trevor v. Wood, supra actually argues her rival's cause. In addition to the passage of the opinion cited by Defense Counsel, the learned Court goes on, however, to state: "Where the offer is by letter the usual mode of acceptance is by the sending of a letter announcing a consent to accept where it is made by a messenger a determination to accept returned through him or sent by another would seem to be all the law requires if the contract may be consummated without writing. There are other modes which are equally conclusive upon the parties; keeping silence under certain circumstances is an assent to a proposition; anything that shall amount to a man ifestation of a formed determination to accept, communicated or put in the proper way to be communicated to the party making the offer, would doubtless complete the contract." (Id. at 310). The critical issue for the Court to determine is whether a contract was entered into Page 12 of 27 [* 13] Walter Boss, et al. v Roucalli Freight, et al. Index No.:02014612012 between Mr. Boss and Mr. Von Kuersteiner on behalf of their respective companies to settle th e billing dispute in return for a $ 140,000.00 cred it. Interesting ly, both the Defendants' claim that the absence of a writing is fata l to their adversaries claim of a contract's existence. The subject agreement, by its terms, does not offend the Statute of Frauds (General Obl igations Law§ 5-70 l ). We also find that the terms of the agreement as described by Mr. Boss are not vague but instead definite and certain enough to be enforced (Joseplt Martin, .Ir., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, (1981]; compare Canzona v. Atmwsio, 11 8 A .0.3d 837, 989 N .Y.S.2d 44 [2nd Dept. 2014]). The case of Cobble Hill Nursing Home, Inc. v. Henry & Warren Corp., supra, cited by the Plaintiffs' sagely guides us in this regard. The Court opined: "Before rejecting an agreement as indefi nite, a court must be satisfied that the agreement cannot be rendered reasonably certain by reference to an extrinsic standard that makes its meaning clear ( 1 Williston, Contracts§ 47, at 153-156 (3d ed. I 957]). The conclusion that a party's promise should be ignored as meaningless "is at best a last resort" (Cohen & Sons v Lurie Woolen Co. , 232 N.Y., at 114, 133 N.E. 370, supra)." (Id. at 483 ). The terms agreed upon herein were s impl e but clear. A $ 140,000.00 credit for the Boss Parties in return for forbeara nce of litigati on against two of the EVK Parties. This is readily enforceable. The question then becomes whether Mr. Boss and Mr. Von Kuersteiner's intent was to wait for a written agreement before they would contractually bound. As illustrated in the case of to Kowalclmk v. Stroup, 61 A.0.3d 118, 121 , 873 N.Y.S.2d 43 ( P 1 Dept. 2009) cited by Plaintiffs: "'It is wel l settled that, if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liab le until it has been written out and signed"' (Jordan Page 13 of 27 [* 14] Walter Boss, et al. v Ronca/ti Freight, et al. Index No.:02014612012 Panel Sys. Corp. v. Tur11er Co11str. Co., 45 AD3d 165, 166 [2007], quoting Selleck v. Fra11cis, 26 NY2d 466, 469-470' [1970])." The case of Spencer Trask Software & Info. Servs. LLC v. RPost Int'l Ltd., 383 F. Supp. 2d 428, 440-41 (S.D.N.Y. 2003) stands for the principle that: "Under New York contract law, parties may enter into a contract orally, even though they contemplate later memorializing their agreement in writing ... .In such a case, the mere intention to commit the agreement to writing will not prevent contract formation prior to the execution of that writing ... .That is, if the parties have settled on the contract's substantial terms, a binding contract will have been created, even though they also intended to memorialize it in a writing ... It is the intent of the parties that will determine the time of contract formation." (Id. at 441). How do we ascertain the party 's intent? That question is answered by the reasoning given to us in the recent case of Gator Hillside Viii., LLC v. Schuckman Realty, Inc., 158 A.D.3d 742 (2nd Dept. 2018) wherein the Court stated: "[T]he existence of a binding contract is not dependent on the subjective intent of [the parties]" (Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 N.Y.2d 397, 399, 393 N.Y.S.2d 350, 361 N.E.2d 999; see Cilii/ized People, Inc. v. Milk St. Cafe, Inc., 129 A.D.3d 761, 762, 10 N.Y.S.3d 611; Minelli Constr. Co., Inc. v. Volmar Constr., Inc., 82 A.D.3d 720, 721, 917 N . Y. S.2d 687). "In determining whether the parties entered into, a contractual agreement and what were its terms, it is necessary to look, rather, to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds" (Brow11 Bros. Elec. Contrs. v. Beam Constr. Corp. , supra at 399; see Civilized People, Inc. v. Milk St. Cafe, Inc;, supra at 762, 10 N.Y.S.3d 611; Minelli Constr. Co., Inc. v. Volmar Constr., Inc., supra at 721). "That means, simply, that the manifestation of a party's intention rather than the actual or real intention is ordinarily controlling" OWenclterv. Weiss, 306N.Y. l, 7, 114 N.E.2d 177; see Hotchkiss v. National City Bank ofi Page 14 of 27 [* 15] Index No.:02014612012 Walter Boss. et al. v Ronca/Ii Freight, et al. N. Y., 200 F. 287, 293 [S.D.N.Y.], ajfd20 I F. 664 [2d Cir.], ajfd 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115). The "expressed words and deeds" of the Parties clearly favor Mr. Boss' recall of the May 20 l l meeting. After the agreement was reached, the principals of the respective Parties shook hands. Although the act of "shaking hands" does not in and of itself create a contract, the Court is not remiss in considering it as a sign of mutual assent (Maffea v. Ippolito, 247 A.D.2d 366, 367, 668 N.Y.S.2d 653, 654 (2 11d Dept. 1998). Subsequently Mr. Boss did not proceed to li tigation against Pines Commercial Properties or Pines Operations LLC for services rendered. Mr. Von Kuersteiner did not bring an action for past rent. Roncalli Freight, for a time, provided sh ipping services for the Boss Parties, no longer demanding "cash on the barrelhead" to honor a $140,000.00 credit. All of the forgo ing point, inexorably, to the conclusion that the Parties were conducting themselves as if they were contractually obligated to do so. Mr. Von Kuersteiner's subsequent behavior can be seen as an attempt to renegotiate the agreement. Since the contract had already been formed, however, he lacked the power to unilaterally renounce it. Mr. Von Kuersteiner's actions after the formation of the contract can be seen as an improper repudiation of same (Cltildren of America (Cortlandt Manoi~, LLC v. Pike Plaza Assocs., LLC, I 13 A.D.3d 583, 584, 978 N.Y.S.2d 323, 324 [2nd Dept. 20 14)). As noted above, the Court is satisfied that the evidence shows an oral contract was entered into at the May 2011 meeting between the principals of the Parties. The question is whether such an agreement is enforceable? It is not a "standard" executory contract wherein Mr. Boss' Companies agreed to furnish services etc. to the EVK entities in return for shipping credits on Roncall i/Coastline. Instead, it is an agreement to settle past due claims for services rendered that cou ld be the subject of a separate lawsuit or suits. Ms. Blair points to this distinction in arguing against enforceability. Ms. Donnenfeld does not concede the difference. Page 15 of 27 [* 16] Walter Boss, et al. v Roncalli Freight, et al. Index No.:020146/2012 Ms. Blair makes an interesting argument that the agreement in question, since it contemplates a settlement of Boss' claims which cou ld be enforced via litigation, requires a writing pursuant to CPLR 2104. This Rule states: "An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk." In support of this contention, Ms. Blair draws the Court's attention to the holding in Force/Ii v. Ge/co Corp., 109 A.D.3d 244, 250, 972 N.Y.S.2d 570 (211c1 Dept. 2013, Sgroi J) where the Court held: "It is, of course, axiomatic that a letter can be considered "subscribed," since letters are usually signed at the end by the author thereof. However, email messages cannot be signed in the traditional sense. Nevertheless, this lack of "subscription" in the form of a handwritten signature has not prevented other courts from concluding that an email message, which is otherwise valid as a stipul ation between parties, can be enforced pursuant to CPLR 2104. In the case of Williamson v Delsener (59AD3d 291, 291 [2009]), the Appellate Division, First Department, stated that "e-mails exchanged between counsel, which contained their printed names at the end, constitute signed writings (CPLR 2104) within the meaning of the statute of frauds." In the case of Brighton Inv., Ltd. v Har-Zvi (88 AD3d 1220, 1222 [2011 ]), the Appellate Division, Third Department, stated that "an exchange of e-mails may constitute an enforceable contract, even if a party subsequently fails to sign implementing documents, when the communications are sufficiently clear and concrete to estab lish such an intent" (internal quotation marks omitted)." Ms. Blair also asks the Court to apply the rule in Diarassouba v. Urban, 7 l A.D.3d I Page 16 of 27 [* 17] Walter Boss, et al. v Ronca/Ii Freight, et al. Index No.:02014612012 51 , 57, 892 N.Y.S.2d 410 (2nd Dept. 2009) in which the Court set forth that: "Notwithstanding the Supreme Court's assertion that "an agreement is an agreement," a settlement agreement must still be reduced to writing in order to have binding effect on the parties. For example, in Van Syckle v Powers ( l 06 AD2d 711 [1984]), the attorneys made an oral settlement agreement and the defendant signed all the necessary documents. Before the plaintiff signed the documents, the plaintiffs' attorney asked to hear the jury's verdict. The court informed the attorney that the verdict could not be heard ifthere already was a settlement and, consequently, the Plaintiff's attorney disavowed the settlement. After the jury read its verdict, wh ich was significantly in excess of the oral settlement agreement, the plaintiff refused to sign the settlement papers. The Appellate Division, Third Department, declined to enforce the purported settlement as it had not been agreed to in writing by both parties." (Id. at 58). Counsel's reliance on Diarassouba is most telling. In addition to the passage above wh ich was quoted in Defendant's Post Trial Memorandum, the Appellate Court had preceded the above statement by noting at page 56: "The open-court exception to CPLR 2104 was created in order to codify the previously existing practice of enforcing oral stipulations that were made in open court in the course of judicial proceedings (see, Matter of Do/gin Eldert Corp., 31 NY2d at 9)." In contrast to the case at bar, the subject matter of both Diarassouba and Forcelli were settlements of pending litigation. We draw Counsel's attention to the particular language in Rule 2104 which indicates its limitations when it states: "relating to any matter in an action ... " (emphasis ours). The claims that the Boss Parties could make against the EVK Patties were not the subject of a pending law suit. Mr. Boss had not fi led any papers to clai m breach of contract for the EVK Parties' failure to compensate the Boss companies for labor and goods. This contract Page 17 of 27 [* 18] Walter Boss, et al. v Ronca/Ii Freight, er al. Index No.:02014612012 therefore was not to settle a lawsuit but a settlement of potential lawsuits. ''CPLR 2104 does not by its terms apply outside actions or special proceedings, and would seem not to be appicable to administrative proceedings unless the applicable rules or statute cross reference to CPLR rules ... This leaves open to possible enforcement a whole range of other agreements not within the subset. (See generally Article 5 of the General Obligations Law and the statute of frauds, GOL § 5-701)." (Rule 2104 Commentaries C2 l 04:7. Stipulations in Arbitrations and Other Proceedings). It has been held that CPLR 2104 is not applicable to agreements reached in an administrative proceeding (Silverman v. McGuire, 51 N.Y.2d 228, 433 N.Y.S.2d 1002 [ 1980]). The Defendants seek to have this Court extend its reach even further, to settlements reached in pre-litigation negotiations. We decline to do so. Therefore, the Court finds that the Plaintiffs have proven, by a fair preponderance of the credible evidence that the Boss Parties and EVK Parties entered into a binding contract as described above and in their first and second causes of action. Since Plaintiff's theory of the case was that the $140,000.00 credit was in lieu of proceeding to enforce a claim for goods and services, this subsumes the claims in the first cause of action. We next address whether Ronca Iii Freight has proven the existence of a ,c ontract (and breach thereof) with the Boss Parties as alleged in the counterclaim. The Defendant Roncalli's argument is that a shipping contract between it and the Boss Parties was established in writing, via an account stated as well as being implied-in -fact. To support her contention that a contract implied-in-fact has been proven, Ms. Blair cites to Miller v. Schloss, 218 N.Y. 400, 406-07, I 13 N.E. 337, 338-39 (1916) wherein the learned Court stated: "The courts recognize by the language of their opinions two classes of implied contracts. The one class consists of those contracts which are evidenced by the acts of the parties and not Page 18 of 27 [* 19] Walter Boss, et al. v Ro11calli Freight, et al. Index No.:02014612012 by their verbal or written words - true contracts which rest upon an implied promise in fact. The second class consists of contracts implied by the law where none in fact exist-quasi or constructive contracts created by law and not by the intentions of the parties. A contract cannot be implied in fact where the facts are inconsistent with its existence, or against the declaration of the party to be charged, or where there is an express contract covering the subject-matter involved, or against the intention or understanding of the parties; or where an express promise would be contrary to law. The assent of the person to be charged is necessary, and, unless he has conducted himself in such a manner that his assent may fairly be inferred, he has not contracted (Morse v. Kenney, 87 Vt. 445, 89 Atl. 865; Mathie v. Hancock, 78 Vt. 414, 63 Atl. 143 ; Hertzog v. Hertzog, 29 Pa. 465; Earle v. Coburn, 130 Mass. 596; Central Bridge Corporation v. Abbott, 4 Cush. (Mass.) 473." Defense Counsel a lso cites to the holding in St1rbro IX v. State Office ofGen. Servs., 229 A.D.2d 910, 911 , 645 N.Y.S.2d 212, 214 (4th Dept.1996) which held: "an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience he ought not to retain and that belongs to another", as well as over quasi contract actions such as unjust enrichment or money had and received (Parsa v. State of New York, 64 N.Y.2d 143, 148, 485 N.Y.S.2d 27, 474 N.E.2d 235, rearg. denied 64 N.Y.2d 885, 487 N.Y.S.2d 1029, 476 N.E.2d 1008; see, Miller v. Schloss, 218 N.Y. 400, 406-407,) 113 N.E. 337; 230; Park Ave. Assocs. v. State of New York, 165 Misc.2d 920, 926-927, 630 N.Y.S .2d 855). Sarbro IX, however, is of limited utility because the discussion of the Court was confined essentially to the jurisdiction of the Court of Claims (Court of Claims Act § 9 [2]). The holding in Parsa v. State, 64 N.Y.2d 143, 148, 474 N.E.2d 235, 237-38, rearg~ denied 64 N.Y.2d 885, 487 N .Y .S.2d 1029, 476 N.E.2d 1008; (1984) also involves claims against the State, but its language is more expansive. The Court reiterated the principles of Page 19 of 27 [* 20] Walter Boss. el al. v Ronca/Ii Freight, et al. Index No,:02014612012 JlJil/er •'· Schloss when it opined that: " .. . the courts recognize two different types of implied contract. The first, a contract implied in fact, rests upon the conduct of the parties and not their verbal or written words. It is a true contract based upon an implied promise ... The second type, the type claimed here for money had and received is a contract implied in law. Although the action is recognized as an action in implied contract, the name is something of a misnomer because it is not an action founded on contract at all; it is an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience he ought not to retain and that belongs to another (Miller v. Sclt/oss, supra at 406-407) . It allows plaintiff to recover money which has come into the hands of the defendant "impressed with a species of trust" (see Chapman v. Forbes, 123 N.Y. 532, 537, 26 N.E. 3) because under the circumstances it is '"against good conscience for the defendant to keep the money'" (Federal Ins. Co. v. Groveland State B<m./c, 37 N.Y.2d 252, 258, 372 N.Y.S.2d 18, 333 N.E.2d 334, quoting from Schank v. Scltucltman, 212 N.Y. 352, 358, 106 N.E. 127). The remedy is available "ifone man has obtained money from another, through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass" (Miller v. Scltloss, supra, at 218 N.Y. p. 408, 113 N.E. 337). The action depends upon equitable principles in the sense that broad considerations ofright, justice and morality apply to it, but it has long been considered an I action at law (see Roberts v. Ely, 113 N.Y. 128, 20 N.E. 606; Diefentlzaler v. Mayor of City ofN.Y., 111 N.Y. 331, 337, 19 N.E. 48)." In opposing the Defendants' argument Plaintiff.<; declare that there was no mutual assent as to the particulars of shipping. Ms. Donnenfeld relies on the holding in Kowalchuk v. Stroup, supra and to the case of Cobble Hill Nursing Home, Inc. v. Henr.y & Warren Corp. , supra where Justice Kaye, of happy memory, wrote with her usual eloquence that: "Few principles are better settled in the law of contracts than the requirement of definiteness. If an agreement is not reasonably Page 20 of 27 [* 21] Walter Boss, et al. v Roncal!i Freight, et al. Index No.:02014612012 certain in its material terms, there can be no legally enforceable contract (Martin Delicatessen v Scltumaclter, 52 NY2d 105, 109; Restatement [Second] of Contracts § 33 [1981]). The doctrine of definiteness serves two related purposes. First, unless a court can determine what the agreement is, it cannot know whether the contract has been breached, and it cannot fashion a proper remedy (see, Metro-Goldwyn-Mayer v Scheider, 40 NY2d l 069, 1070-1071; Restatement (Second] of Contracts§ 33 [2] [ 1981 ]). This is particularly significant where specific performance is sought. Second, the requirement of definiteness assures that courts will not impose contractual obligations when the parties did not intend to conclude a binding agreement (see, Restatement [Second] of Contracts § 33 [3] [1981])." (Id. at 482). Cobble Hill was later discussed in Teutul v. Teutul, 79 A.D.3d 8fi 1, 852, 912 N.Y.S.2d 664, 665 (2 11d Dept. 2010) which reiterated the principles herein. Ms. Donnenfeld argues that the evidence at trial does not support Defendant's claims of the existence of a contract between Coastline (a/k/ a Roncalli Freight) and the'Boss Parties. She points to the fact that every customer of Coastline (other than the Boss Parties) paid on a cash basis (Steven Young's testimony (Transcript pp.52-53) and Coastline's forbearance of finance charges. We find this to be a difference without a distinction. The faicts presented before this Court demonstrate that the Defendant Roncalli Freight shipped product for the Boss Parties and that the Plaintiffs accepted the services. This was clearly behavior consistent w ith assent. Especially when it is coupled with the documentbry evidence (Defendants' Exhibits I and J), which placed the Plaintiffs on notice of a charge for the Defendants' services. This is long settled law. In Sibbald v. Bethlehem Iron Co. , 83 N.Y. 378, 380 ( 1881), the Court held: "This is only saying that the contract of employment may be established either by proof of an express and original agreement I that the services should be rendered, or by facts showing, in the Page 21 of 27 [* 22] Walter Boss, et al. v Ronca/Ii Freight, et al. Index No.:02014612012 absence of such express agreement, a conscious appropriation of the labors of the broker. Indeed, the learned counsel for the defendant very fairly and justly concedes that the contract may be established in some cases "by the mere acceptance of the labors of a broker." In short, the Defendants have proven by the fair preponderance of the evidence that the Plaintiffs" ... conducted [themselves] in such a manner that [thei r] assent may fairly be inferred" (Tjoa v. Julia Butterfield Mem 'I Hosp., 205 A.D.2d 526, 526, 612 N.Y.S.2d 676, 677 [2nd Dept. 1994]quoting Miller v. Seit loss, supra]). The existence of an hnplied in fact contract has been established. Ms. Blair also contends the Defendants have proven an account stated in the amount of $212,038.00 (Defendants' Exhibits C and D). She cites to the holding in Interment Indus. Prod., Ltd. v. R.S.M. Electron Power, Inc. , 37 N.Y.2d 151, 153-54, 332 N.E.2d 859, 861 ( 1975), wherein Judge Gabrielli writing for a unanimous Court: "As was stated nearly one hundred years ago by Chief Judge Folger, '(a)n account stated is an account balanced and rendered , with an assent to the balance express or implied; so that the demand is essentially the same as if a promissory note had been given for the balance' (Volkening v. DeGraaf, 81 N.Y. 268, 270); and in Newburger-Morris Co. v. Talcott (219 N .Y. 505, 512, I 14 N.E. 846, 848) Judge Cardozo wrote as follows: 'the very meaning of an account stated is that the parties have come together and agreed upon the balance of indebtedness, lnsimul computassent, so that an action to recover the balance as upon an implied promise of payment may thenceforth be maintained.' Thus, wh ile the mere silence and failure to object to an account stated cannot be construed as an agreement to the correctness of the account, the factual situation attending the particular transactions may be such that, in the absence of an objection made within a reasonable time, an implied account stated may be found (Corr v. Hoffma11 , 256 N.Y. 254, 266, 176 N.E. 383, 388)." Page 22 of 27 [* 23] Walter Boss, et al. v Roncalli Freight, et al. Index No.:02014612012 Ms. Blair also cites to Ryan Graphics, Inc. v. Bailin, 39 A.D.3d 249J 250-5 1, 833 N.Y.S.2d 448 (2007): "An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due" (Jim-Mar Corp. vAquatic Constr., 195 AD2d 868, 869 (1993], citing, inter alia, Interman Indus. Prods. v R. S . M. Electron Power, 37 NY2d 151 [1975] and Chisltolm-Ryder Co. v Sommer & Sommer, 70 AD2d 429 [1979]). "An account stated assumes the existence ofsome indebtedness between the parties, or an express agreement to treat the statement as an account stated. It cannot be used to create liability where none otherwise exists" (M. Paladino, Inc. v. Lucchese & Son Contracting Corp., 247 AD2d 515, 516 [1998], citing Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995, 996 [1979]; see lt1artin H. Bauman Assoc. v. H & M Intl. Transp., 171 AD2d 479 [1991]). 11 In addition to the above authority, the law requires that in order to prevail upon a claim for an account stated, it must be proven that: "( l) an account was presented; (2) it was accepted as correct; and (3) debtor ... promised to pay the amount stated" see /MG Fragrance Brands, LLC v. Houbigant, Inc., 679 F.Supp.2d 395, 411 (S.D.N. Y.2009). 11The second and third requirements (acceptance of the account as correct and a promise to pay the amount stated) may be implied if a party receiving a statement of account keeps it without objecting to it within a reasonable time or if the debtor makes partial payment." (Id.) (internal quotation marks omitted); (Abbas Corp. (PVT) v. Michael Aziz Oriental Rugs, Inc., 820 F. Supp. 2d 549, 552 [S.D.N.Y. 2011] citing LeBoeuf, Lamb, Greene & MacRae, LLP v. Worsham, 185 F.3d 6 1, 64 [2d Cir.1999]). The case of Russo v. Heller, 80 A.D.3d 531, 915 N.Y.S.2d 268, (I stDept.2011) states the rule in the same manner as Abbas Corp., supra. The proof adduced at trial clearly supports (and proves) the Defendant Roncalli Page 23 of 27 · [* 24] Walter Boss, et al. v Ro11calli Freight, et al. Index No.:02014612012 Freight's claim fo r an account stated. Indeed, it is unequivocal. All three defense w itnesses testified that monthly bills for freight shipping were sent from Roncal li to Walter Boss Inc. and Pines Propane Corp. on and between the dates of July 1si, 20 12 to Apri l of 20 16. Mr. Boss admitted to receiving them (Boss Testimony 4/2712016, Transcript p.14). The Defense witnesses and Mr. Boss stated that no objections were offered (Mr. Yon Kuersteiner's TestimonyTranscript4/28/20 16, p.105; Mr. Young's TestimonyTranscript4/28/2016, p.67; Ms. Napolitano's Testimony Transcript 4/29/20 16, p.16). Ms. Blair, in her final point, contends that the Defendants are entitled to recover Attorney fees and service and finance and storage charges based on the written contract between the Parties (Defendants' Exhibits I and J). Specifically, she asks for Attorney fees of $66,227 .00 and 2% monthly service charges and storage fees as per the contract that Boss Inc. did not object to. In response to this contention, The Plainti ffs' position is that this is an inextricable part of the overall settlement agreement between the Boss Parties and the EVK Parties and s hould be discounted. Despite Ms. Donnenfeld's eloquence, there is nothing in the record to indicate that Roncalli Freight was obliged to surrender its .c laims against the Boss Parties as part of the transaction. The Parties were silent. During the negotiations, the terms of a written contract hung over them like the Sword of Damocles. As pointed out by Ms. Blair, it is a comprehensive agreement. It cannot help but be contrasted with the ora l agreement that this Court will enforce. Whereas in establishing the proof of the oral agreement took days of hearing and weighing testimony, separating the gold from the dross, the written agreement is clear and brooks no disagreement as to its intentions. To compare these two types of agreements, one look no furthe r than the maxim vox emissa volat litera script manet. ** The ultimate oral Contract between the Boss Parties and the EVK Parties did not extinguish the contractual obl igations that the Boss Parties had with Roncalli because the Parties did not specifically address it. "Under the standard canon of contract construction expressio unius est exclusio alterius, that is, that the expression of one thing implies the Page 24 of 27 [* 25] Walter Boss, et al. v Roncalli Freight, et al. Index No. :02014612012 exclusion of the other" (Matter of New Yori' City Asbestos Litig., 41 AD3d 299, 302, 838 N.Y.S.2d 76 [1st Dept.2007)). Under the circumstances of the case, the Court finds that the only reasonable way to reconcile the differing proof is to hold that it supports the creation of the two different contractual arrangements. Accordingly, the Defendant Roncalli Freight has proven by a fair preponderance of the evidence that it enj oyed an implied in fact contract for the supply of services to the Plaintiffs Walter Boss Inc. and Pines Propane Corp. and that the Plaintiffs' breached same. Additionally, the Defendant Ron cal Ii Freight has proven an account stated and the Plaintiffs' failure to pay as per its terms. Pursuant to the written agreement between the Parties, the Defendant Roncalli Freight shall recover Attorney fees of$66,227 .00 (as testified to) and 2% monthly service charges and storage fees. Since the Court has found that both the Boss Parties and Roncalli have proven both the existence of respective contracts and the subsequent breach, we now must take up Ms. Blair's argument (Point III of her Post Trial Brief) that there can be no offset between any amount due to Roncalli Freight Company and any amount allegedly due Walter Boss Inc. Pine Propane Corp. and Pines and Pools, Inc. by the other EVK Parties. Defendants take the position that "any sums owed to Boss from Pines Operations and Pines Commercial Properties are separate and distinct from the amounts owed by Boss to Coastline Freight." (Plaintiffs' Exhibit 33). The Plaintiffs in this case seek to take the liability which they owe to Roncall i Freight and off-set it against the other Corporate entities owned, in whole or in part, by Mr. Von Kuersteiner. The basis for this, as per Plaintiffs' counsel, is that the underlying contract was negotiated by Mr. Von Kuersteiner on behalf of all the Defendants. If one were to assume, arguendo, that liability in favor of Boss Inc. attaches exclusively to Roncalli Freight~ by what principle or theory can liability attach to a separate corporation (other than an express contractual agreement) to assume Roncalli's debt? A Page 25 of 27 [* 26] Walter Boss, et al. v Ronca/Ii Freight, et al. Index No.:02014612012 claim articulating de facto merger and successor liabi lity is one method (Fitzgerald v. Falt11estock & Co., 286 A.D.2d 573, 730 N.Y.S.2d 70 (l51 Dept. 2001). Piercing the corporate veil is another vehicle (Sweeney, Coltn, Sta/ti & Vaccaro v. Kane, 6 A.D.3d 72, 75-76, 773 N.Y.S.2d 420, 423 (2nd Dept. 2004). Ms. Blair ski llfully argues that the Court must see the Corporate entities as separate and that excuses them from Roncalli's liability. The Court agrees that the various Defendant Corporations enjoy individual existence. The Corporate privilege is a formidable bastion that protects its owners from suffering personal liability (E. Hampton Union Free Sch. Dist. v. Sant/pebble Builders, Inc., 66 A.D.3d 122, 884 N.Y.S.2d 94 (2nd Dept. 2009), ajfd, 16 N.Y.3d 775, 944 N.E.2d 1135 [2011]). It does not necessarily follow, however, that multiple corporations cannot be bound by a single contract. Mr. Von Kuersteiner observed all Corporate formalities as an Officer/Owner of the Defendants. This is presumed and there is no evidence to contradict it. It is also uncontroverted that he was endowed with the power to enter into contracts on behalf of each company. Assuming that his actions in giving up a $140,000 .00 credit from Roncalli Freight was against that company's interest, that is his prerogative subject to a shareholder's derivative suit (Walsh v. Wwebnet, Inc., 116 A.D.3d 845, 984 N.Y.S.2d 100 [2nd Dept. 2014]). The viabi lity of the contract with a third party is never in doubt since it is of no concern to the obligees-Walter Boss Inc., et al. In th is particular case, it cannot be argued that the remaining Corporations were somehow strangers to the transaction. As CEO of Ronca Iii Freight Company, Pines Commercial Properties LLC and Pines Operations LLC, Mr. Von Kuersteiner wore three hats, and there is nothing to preclude him from wearing them simultaneously. Indeed, it is apparent that the use of Roncalli's resources to satisfy an obl igation of Pines Commercial Properties and Pines Operations, could be a sage example of corporate synergy. Such informal combinations of corporate interests are unremarkable Page 26 of 27 [* 27] Walter Boss, et al. v Roncalli Freight, et al. Index No.:02014612012 save when they rise to restraint of trade (General Business L aw § 340). What the proven facts do establish, is that Mr. Kuersteiner did not just enter into an agreement sole ly on behalf of Roncalli . It would be nudum pactum since Mr. Boss' claims were against Pines Operations and Pines Commercial Property exclusively. Accordingly, the only reasonable interpretation of the May of20 11 agreement was for it to bind all the Parties. The exception being the written agreement and the shipping Contract whi ch the Parties did not address in their negotiated settlement. Therefore, the claims of the Boss Parties of the Counter Claim ofRoncalli Freight and which have been proven as noted in this decision shall be offset against each other. Settle Judgment. DATED: NOVEMBER 8 111 , 2018 RIVERHEAD, NY I HON. J AMES HUDSON Acti11g Jilstice of the Supreme Court t7 * A great number of unskilled practitioners ruins a court (2 Inst.219). ** The spoken word flies and the written word remains. Page 27 of 27

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