Crescent Packing Corp. v Tropical Mkt., Inc.
Annotate this CaseDecided on June 28, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JAMES V. BRANDS, J.P., ANTHONY MARANO, TERRY JANE RUDERMAN, JJ
2016-2151 S C
Crescent Packing Corp., Respondent,
against
Tropical Market, Inc., and Lisa Espinal, Appellants.
Bouklas Gaylord, LLP (Mark Gaylord of counsel), for appellants. Law Offices of Stephen M. Abrami, PLLC (Stephen M. Abrami of counsel), for respondent.
Appeal from an order of the District Court of Suffolk County, Second District (John Schettino, J.), dated July 1, 2016, deemed from a judgment of the same court entered July 21, 2016 (see CPLR 5512 [a]). The judgment, entered pursuant to the July 1, 2016 order granting plaintiff's motion for summary judgment and denying defendants' cross motion (1) for summary judgment dismissing so much of the complaint as was asserted against defendant Tropical Market Inc., and (2) to dismiss so much of the complaint as was asserted against defendant Lisa Espinal, awarded plaintiff the sum of $13,109.47 as against both defendants.
ORDERED that the judgment is reversed, without costs, so much of the order dated July 1, 2016 as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion is denied.
Plaintiff commenced this action to recover the principal sum of $7,210.72, which is the amount allegedly due on $48,705.59 of goods it had sold and delivered to defendant Tropical Market, Inc. (Tropical). Plaintiff also alleged a contractual right to recover pre-judgment interest and attorney's fees. In a verified amended complaint, plaintiff asserted causes of action against Tropical pursuant to CPLR 3016 (f); on an account stated; and for goods sold and delivered. Plaintiff also asserted a cause of action against defendant Lisa Espinal premised on her alleged guaranty of Tropical's debts. There is annexed to the amended complaint an itemized list of 477 products that plaintiff had sold to Tropical between July 11 and October 28, 2013. Defendants' answer denied the allegations of the amended complaint and asserted a number of affirmative defenses, which included "setoff" but did not include "payment."
Plaintiff moved for summary judgment against both defendants. In support of its motion, plaintiff submitted the affidavit of its vice-president of operations, Kevin Connelly, who asserted that, in July 2013, Tropical had submitted a credit application to plaintiff, which had been personally guaranteed by Espinal; that plaintiff had thereafter sold goods to Tropical; that seven [*2]of plaintiff's invoices to Tropical, dated between August 30 and September 21, 2013, were unpaid; and that there remained an outstanding principal balance of $7,210.72 due from Tropical to plaintiff. Connelly also claimed that, under the terms of its invoices to Tropical and the credit agreement, it was entitled to monthly interest of 1.5% on the unpaid balance, as well as attorney's fees. Plaintiff annexed to its moving papers a copy of Tropical's application for credit to plaintiff, dated July 1, 2013, and copies of 41 invoices to Tropical, dated from July 11 to October 28, 2013.
Defendants opposed plaintiff's motion, and cross-moved for summary judgment, pursuant to CPLR 3212, dismissing so much of the complaint as was asserted against Tropical, and to dismiss, pursuant to CPLR 3211, so much of the complaint as was asserted against Espinal. In support thereof, defendants submitted, among other things, copies of the invoices plaintiff claimed were unpaid, with the word "paid" and other inscriptions written on them, a copy of Tropical's check to plaintiff in the sum of $7,590.41, dated October 4, 2013, and Espinal's affidavit, in which she claimed that plaintiff's invoices had been paid upon delivery and denied having intended to superadd her own personal liability to that of Tropical. The District Court granted plaintiff's motion, upon a finding that, although plaintiff had failed to prove an account stated, it had established its right to summary judgment against Tropical pursuant to CPLR 3016 (f), and its right to summary judgment against Espinal based on her signature on Tropical's application for credit. It denied defendants' cross motion, upon a finding that Tropical's proof had been inadequate to establish the unpleaded affirmative defense of payment, and further concluded that Tropical had failed to sufficiently lay bare its evidence in admissible form so as to require a trial of any material issue of fact. A judgment was subsequently entered, awarding plaintiff the sum of $13,109.47.
Pursuant to CPLR 3016 (f), if a plaintiff seeking payment for the sale and delivery of goods sets forth in a verified complaint the items of its claim and the reasonable value or agreed price of each, the defendant is obligated, in the answer, to indicate specifically the items it disputes, and whether in respect of delivery, performance, reasonable value or agreed price (see Raytone Plumbing Specialities, Inc. v Sano Constr. Corp., 92 AD3d 855, 856 [2012]; Summit Sec. Servs., Inc. v Main St. Lofts Yonkers, 73 AD3d 906 [2010]). A copy of a writing attached to the complaint may sufficiently itemize the claim (see Empire State Fuel Corp. v 2683 Morris Assoc., LLC, 31 Misc 3d 40, 42 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also CPLR 3014). The complaint must, however, list the goods with sufficient detail so that it may be readily examined and its correctness tested entry by entry (see Raytone Plumbing Specialities, Inc. v Sano Constr. Corp., 92 AD3d at 856; Summit Sec. Servs., Inc. v Main St. Lofts Yonkers, 73 AD3d at 907). Here, since the itemized statement annexed to the complaint apparently included all the items plaintiff had sold Tropical, and did not specify the items to which Tropical's payments had been applied, it was insufficient to trigger an obligation under CPLR 3016 (f) for Tropical to specify which items of plaintiff's claim it disputed (see Empire State Fuel Corp. v 2683 Morris Assoc., LLC, 31 Misc 3d at 42; see also Anderson & Anderson-Guangzhou v Incredible Invs. Ltd., 107 AD3d 1520 [2013]). We therefore conclude that the District Court erred in awarding summary judgment to plaintiff on its cause of action based on CPLR 3016 (f).
In their answer to the amended complaint, defendants failed to plead the affirmative defense of payment, although they pleaded setoff. However, in opposition to plaintiff's motion [*3]for summary judgment, defendants asserted that plaintiff's invoices had been paid upon delivery. Under the circumstances, since plaintiff failed to demonstrate that it had been surprised or prejudiced by defendants' assertion of payment, defendants were entitled to rely on the affirmative defense of payment in opposition to plaintiff's motion (see Rogoff v San Juan Racing Assn., 54 NY2d 883 [1981]; Sullivan v American Airlines, Inc., 80 AD3d 600 [2011]; J.K.M. Med. Care, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51071[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see also CPLR 3025 [b]; cf. CPLR 3018 [b], 3211 [a] [5], [e]; Ross v Ross Metals Corp., 111 AD3d 695, 696-697 [2013]; Nannini & Callahan Excavating v Park Rd. Constr. Corp., 234 AD2d 352, 352 [1996]). Although plaintiff presented itemized invoices and signed delivery receipts for the merchandise it had delivered to Tropical, and Connelly's affidavit asserted that plaintiff had an outstanding principal balance of $7,210.72, thus apparently demonstrating, prima facie, its entitlement to summary judgment on its cause of action for goods sold and delivered (see Neuman Distribs. v Falak Pharm. Corp., 289 AD2d 310, 310-311 [2001]), we conclude that, by reason of inconsistencies in plaintiff's proof and unexplained notations on the invoices plaintiff submitted in support of its motion, plaintiff failed to tender sufficient evidence to eliminate any material issues of fact with respect to its cause of action for goods sold and delivered. We note that the District Court found that plaintiff had failed to establish, prima facie, its cause of action based on an account stated, and plaintiff has not challenged that determination.
With respect to the branch of defendants' cross motion seeking summary judgment dismissing so much of the complaint as was asserted against Tropical, we note that defendants failed to establish, prima facie, that they had paid the seven invoices which plaintiff alleged were unpaid.
Espinal, who signed the credit application once, as the "share holder/member" of Tropical, above a line which read "authorized signature and as guarantor," denied having intended to superadd her personal liability to that of Tropical. A triable issue of fact thus exists as to whether Espinal's signature on the credit application was effective to superadd her personal liability to Tropical's, thereby precluding summary judgment in favor of plaintiff on the guaranty (see Salzman Sign Co. v Beck, 10 NY2d 63 [1961]; GMS Batching, Inc. v TADCO Constr. Corp., 120 AD3d 549 [2014]; Yellow Book Sales & Distrib. Co., Inc. v On Call Plumbing & Heating, Inc., 99 AD3d 896 [2012]; Yellow Book Sales & Distrib. Co., Inc. v Mantini, 85 AD3d 1019 [2011]; Star Video Entertainment v J & I Video Distrib.,268 AD2d 423 [2000]; Yellow Book Sales & Distrib. Co., Inc. [a Del. Corp.] v RS Bldrs., Inc., 41 Misc 3d 146[A], 2013 NY Slip Op 52104[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). However, accepting the allegations of the complaint as true and according plaintiff the benefit of every possible favorable inference, the facts as pleaded against Espinal fit within a cognizable legal theory, and, thus, the branch of defendants' cross motion seeking to dismiss so much of the complaint as was asserted against Espinal was properly denied (see Tirpack v 125 N.10, LLC, 130 AD3d 917, 918-919 [2015]).
Accordingly, the judgment is reversed, so much of the order dated July 1, 2016 as granted plaintiff's motion for summary judgment is vacated, and plaintiff's motion is denied.
BRANDS, J.P., MARANO and RUDERMAN, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
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