Sunquest Enter., Inc. v Zar

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Sunquest Enter., Inc. v Zar 2013 NY Slip Op 33358(U) March 29, 2013 Sup Ct, New York County Docket Number: 650035/2012 Judge: Melvin L. Schweitzer Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 04/09/2013 1] INDEX NO. 650035/2012 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 04/09/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HELt11'1J L. Sc(..JWS.lTLE~ PART l/.S INDEX NO. PRESENT: (.S l:X>3S'{ j ]._ Justice MOTION DATE _ _ __ MOTION SEQ. NO. ~ Du' The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s)._ _ _ __ I No(s). - - - - 1No(s). - - - - - Upon the foregoing papers, it is ordered that this motion is Ortf'4z. w (.J ~ :::> .., l e c s: 5-15- 13 w 0:: 0:: w w f (O~ LL 0:: fJu.r >..:.:. ~ z :::> 0 ..J ..J LL I(.J en < w w 0:: ~ w 0:: (!) z :e !!? 0 w en < (.J ..J ..J 0 LL - w z ::c 0 1j:: 0:: 0 0 :::E LL Dated: }11&t.A 1-; 2013 @8'.;:iJ..~:~t.3 c_ 1. CHECK ONE: ¢ ¢ ¢...... ¢...... ¢. ¢... ¢ ¢ ¢ ¢.... ¢. ¢.. ¢.. ¢ ¢ ¢.... ¢ ¢... ¢. ¢.... ¢. ¢. ¢. ¢..... D 0 GRANTED 3. CHECK IF APPROPRIATE: ¢... ¢. ¢. ¢.. ¢. ¢....... ¢. ¢.... ¢. ¢. ¢ ¢. ¢... ¢. ¢. ¢ ¢ ¢. ¢ 0 SETILE ORDER ODO NOT POST 0 ~~;~<t".:r:::~ ~AL DISPOSITION CASE DISPOSED 2. CHECK AS APPROPRIATE: ¢.... ¢..... ¢. ¢ ¢ ¢ ¢ ¢ ¢ ¢ ¢. ¢ ¢ ¢ ¢. MOTION IS: . DENIED 0 0 0 0 GRANTED IN PART OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE; [* 2] SUPREME COURT OF THE STA TE OF NEW YORK COuNTY OF NEW YORK: PART 45 ----------------------------------------------------------.:-------------x SUNQUEST ENTERPRISE, INC., Plaintiff, Index No. 650035/2012 · -againstMONSOUR ZAR, BOBBY ZAR, and BRUCE BOND, individually and d/b/a STUDIO I, I DECISION AND ORDER I Sequence No. 8M'" . Motion ~\ Defendants. ------------------------------------------------------------------------x ¢ MELVIN L. SCHWEITZER, J.: ~ I i " Sunquest Enterprise, Inc. (Sunquest) brings this action against Monsour Zar, Bobby Zar, and Bjruce Bond, individually and ostensibly d/b/a Studio I, to recovlr damages suffered by ' : I' Sunquest as a result of defendants' failure to pay amounts billed and demanded by Sunquest I ! after the individual defendants ordered and accepted goods sold to them by Sunquest. Sunquest ' moves for summary judgment. Background Sunquest is a New York corporation engaged in the sale of clothing apparel. 'I Studio I New York, Inc.(Studio I) was a New York corporation that was dissolved by tax I . proclamation on June 24, 1992. Its current status is in dispute. Unlike plaintiff who alleges that the individual defendants were doing business under the Studio I naLe, defendants contend Studi! I is a division of another corporation, Shazdeh Fashions, Inc.l(Shazdeh). ~ According to plaintiff, Monsour Zar (M. Zar) and Bobby Zj (B. Zar) allegedly held thems~lves out as principals of Studio I. Bruce Bond (B. Bond) wJ held out by M. Zar as president of Studio I. He had contact with Sunquest on behalf of stLdio I, i. I l ~ conceming-delive~ I .j. [* 3] I I ·1 of goods for resale to customers by Studio I. He allegedly held himself out as having authority to act; on behalf of Studio I. j Commencing in May 2010, and continuing through May 20 ~ 1, allegedly on behalf of Studio I, B. Zar and M. Zar contracted with Sunquest to purchase glrments (Goods Sold) which Studi~. I then resold to retail businesses. During that time and allegLly on behalf of Studio I, B. I . . ~ ~ ' Zar placed orders with Sunquest for particular quantities of Goods Sold. Sunquest caused the : I Goods Sold to be delivered to Studio I. The agreed upon price was $377,769.36. Despite . I . Sunquest's demand for payment of the amount due for the Goods Sold as well as for shipping costs, defendants have not paid. Additionally, Sunquest has made a demand for the return of the Goods Sold, which defendants have ignored. Discussion ! CPLR 3212 (b) provides that summary judgment shall only be granted if, "upon all paper~ and proof submitted, the cause of action or defense shall be eLablished sufficiently to ; I warrant the court as a matter of law in directing judgment in favor of any party ... the motion ~ shall be denied if any party shall show facts sufficient to require a trial of any issues of fact." . :! . I . I Int 'l Shared Services, Inc. v McCoy, 259 AD2d 668, 669 (2d Dept 1999). To satisfy its heavy burde~ of proving entitlement to judgment as a matter of law, the mlvant must tender ' evide~tiary proof in admissible form. Summary judgment should ndt be granted ~here there is : any d~ubt as to the existence of material and triable issues of fact, Jwhere the issue is "argu4ble." Glick & Dolleek v Tic-Pac Export Corp., 22 NY2d 439,1441 ( 1968). All inferences shoul~ be resolved in favor of the non-moving party. Assafv Ropo}Cab Corp., 153 AD2d 521, 544 (1st Dept 1989). 2 [* 4] Sunquest states three causes of action: (1) goods sold and delivered; (2) accounts stated; I : and (3) conversion. Sunquest contends it is entitled to summary judgment on its first and second ~y CPLR 3016 (t). Second, it contends it is entitled to summary judgjent on its first and seco~d cause~ of action as Sunquest submitted invoices in an amount totalilg a balance due of ~ $377,~79.36, which defendants have not paid. Third, Sunquest conlends it is entitled to su~ary judgment for conversion as Sunquest has demanded the rJtum of the Goods Sold for whic~ it has not been paid and defendants have refused. Fourth, sulquest argues that it entitled to su~mary judgment on the issue of liability of the individual defeldants in that defendants. cause's of action as defendants have answered generally-and withoJthe specificity required ! Summary Judgment on each cause of action is denied. Defendants have plead with the specificity required under C LR 3016 (t) l "Where a complaint complies w~th CPLR 3016 (t) and the dlfendant fails to res;ond I ~ with the same specificity, on a motion by the plaintiff for summary judgment, the defendant may suppl~ the missing information in his opposing papers." Slavenbur1 Corp. v Rudes, 86 AD~d I - 517, 518 (1st Dept 1982). Here, the defendants supplied additional Information in an affidavit of Za~. The defendants denied that they personally purchased the sJecific goods listed in ~ Exhi~it A to the complaint, denied that they purchased the goods thL are the subject of the B. invoiles attached as Exhibit B to the complaint, and denied that the! agreed to pay the air freight I ! . invoices attached as Exhibit D to the complaint. Defendants have plead with the requisite i specificity under CPLR 3016 (t). ' . . Account Stated and for Goods Sold 3 [* 5] 1 "It is well settled that under New York Law, [a] claim for account stated must ; I demonstrate that (I) an account was presented, (2) the account was accepted as correct and (3) the debtor promised to pay the amount stated." Corporate Serv. Bur., Inc. v Law Firm of ¢ ' Hall & Hall, LLP, 36 Misc 3d 1220 (NY Civ Ct 2012) (internal citations and quotation marks . I , omitted). A plaintiff is entitled to summaryjudgment where it has shown that it has produced to a defjndant documentary evidence of an amount due and that the alount is not objected to , I i · within a reasonable time. Miller v Nadler, 60 AD3d 499, 499 (1st Dept 2009) (Plaintiff law firm estab;ished entitlement to summary judgment on its claim for an acLunt stated by production of I I documentary evidence showing that defendant received and retained the invoice without : . . objection); see also Neuman Distributors, Inc. v Jacobi Med Ctr., 298 AD2d 568, 568 (2d Dept 2002)j (in an action to recover for goods sold and delivered and on al account stated plaintiff was entitl~d to judgment as·a matter of law based upon documentary e~i~ence); and Federal Express Corp\ Federal Jeans, Inc., 14 AD3d 424 (lst Dept 2005) (defendlt received plaintiffs invoi~es ... and retained them without properly objecting i:n a reasolable time and defendant's failur~ to pay those invoices entitled p_laintiff to judgment on an acclunt stated). , . ~Here, numerous invoices indicating an amount due on the golds sold and delivered w~re subm:tted to Studio I. The invoices have not yet been paid. Nor haL the goods been retum~d. The p~oblem with plaintiffs claim is that it did not submit the subjeL invoices to the individual . I . defendants. The invoices indicated that they were addressed to Studio I, not M. Zar, B. Zar, and Bo~d. As the invoices were not sent to the individual defendantsl plaintiffs motion for sum~ary judgment on its account stated claim must fail. See Savitt~aw Firm PLLC v · Minic~iello, 20 I 0 NY Misc LEXIS 23 78, 4-5 (NY Sup Ct 20 I 0) (grlnting summary judgme:t to 1 B. the defondants on an account stated cause of action when the invoicL proffered by plaintiff were I i ' 4 [* 6] addressed to different defendant and there was "no evidence that plaintiff addressed any bills or . I other accounts to the [moving] defendants[.]"); Sound Cof!1munication, Inc. v Rack & Roll, Inc., 88 AQ3d 523 (1st Dept 2011) (Holding that "the complaint fails to Late an account stated cause of action against the moving defendants" because "[a]ll ofplaintiffl underlying invoices, which are a~nexed to the complaint, are addressed to defendant Rack and loll, LLC only"). I . I delivered as defendants have denied the goods were ordered by the them, nor were they ~ j Sunquest is not entitled to summary judgment for its cause of.action for goods sold and . deliv~red to them. Consistent with the invoices, the goods were soil to Studio I, which, as I i previously explained, is alleged to be a division of another corporation, Shazdeh. Conversion ' I A plaintiff establishes a prima facie case of conversion when he proves evidence of th ~ i 1 deliv~ry of goods and the refusal to return them after plaintiff has dlmanded their return. See I ~~ '· l.C.C.jMetals, Inc. v Mun. Warehouse Co., 50 NY2d 657, 662 (1980) (finding that plaintiff had made :out a prima facie case of conversion by proffering undisputed i been delivered to defendant and that defendant had failed to return ~roof that the [goods] h~d " J upon a proper demand); Tokio~Marine and Fire Ins. Co., Ltd. v Fed. Marine, Inc., 397 F Sup~ 2d 530, 536 (SONY 2005) : I citing I. C. C. Metals, Inc. (in granting summary judgment for plaintiff using New York law of conve~sion and stating in New York a plaintiff establishes a prima fLie case when plaintiff : prove! delivery of the stored property to the warehouse and the warJhouse's failure to return the I I property upon proper demand.) ~ ;Sunquest delivered the goods sold to Studio I. In order to establish conversion, Sunquest must ~how that it delivered the goods to the individual defendants Jthat the individual . '. ! I 5 [* 7] defen~ants were in possession of the goods. As Sunquest failed to show it delivered the goods to the individual defendants, summary judgment is denied. .. I Status of Studio I ; Sunquest contends that Studio I was a New York corporation,.that was dissolved by tax proclamation on June 24, 1992. It contends that the individual defobdants negotiated the price or~ered, received and accepted delivery of the Goods Sold by dJing business under the n~me of thi~ dissolved entity. Individuals are liable for their acts purportJdly done under a ; . corpo~ation's name when that corporation has been dissolved by taJ proclamation. Portitsk); v Wach~el, 176 Misc 633, 634 (Sup Ct 1941 Putnam County); Se~ KeLtone Mechanical Corp: v of, . Conde, 309 AD2d 627 (I st Dept 2003) . ~ . But here defendants argue that Studio I is a division of Shazdeh, and that Sunquest knew ! I . ; Studio I was a division of that corporation. They present chargeback memorandums and checks recei~ed by Sunquest as evidence of this. Material questions of fact!Ithus exist regarding the·, . ¢ ,I status: of Studio I in this case, and this precludes granting summary judgment. : ORDERED that Sunquest's motion for summary judgment isl denied. I Dated: March-:l'!, 2013 . ENTER: 6

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