Mulitex USA, Inc. v Marvin Knitting Mills, Inc.

Mulitex USA, Inc. v Marvin Knitting Mills, Inc. 2004 NY Slip Op 07934 [12 AD3d 169] November 4, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Mulitex USA, Inc., Respondent,
v
Marvin Knitting Mills, Inc., Appellant, et al., Defendant.

—[*1]

Judgment, Supreme Court, New York County (Helen E. Freedman, J.), entered March 9, 2004, after a nonjury trial, which, to the extent appealed from, awarded plaintiff the principal sum of $165,500 against defendant Marvin Knitting Mills (MKM), unanimously affirmed, with costs.

In this dispute over goods sold and delivered, the trial court properly concluded that the numerous detailed invoices confirming the agreements made between plaintiff and MKM constituted confirmatory writings in accordance with the merchant's exception set forth in UCC 2-201 (2). Since MKM never made a timely objection to those invoices, it cannot now assert the statute of frauds as a defense (see B & R Textile Corp. v Domino Textiles, 77 AD2d 539 [1980]).

Although there was insufficient evidence to support the trial court's finding that Cottler and Lieberman had actual or apparent authority to sign contracts and incur debt on MKM's behalf, there was ample evidence to support the court's finding that MKM's principal ratified their actions. That principal had the option to repudiate the sales confirmations or object to the invoices addressed to MKM, but he declined to do so. The partial payment of those invoices constitutes ratification of the agreements made by Cottler and Lieberman on MKM's behalf (see Cooper v Greenberg, 151 AD2d 423 [1989]).

The trial court found the statement of May 28, 2002 to be an account stated. From the date of the first invoice (March 7, 2002) to the last (May 17, 2002) referred to in that statement, there was never any issue raised regarding the quality of the goods, the timeliness of delivery, or the amounts listed in the invoices themselves. Moreover, MKM admitted receiving the May 28 statement, and retained it without objection. Absent any indication of a dispute over those invoices, the trial court properly found, from the credible evidence, that the May 28 statement was an account stated (cf. Abbott, Duncan & Wiener v Ragusa, 214 AD2d 412 [1995]). [*2]

We have considered MKM's remaining contentions and find them without merit. Concur—Tom, J.P., Saxe, Lerner, Marlow and Sweeny, JJ.