Fedex Corporate Servs., Inc. v Krausz

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Fedex Corporate Servs., Inc. v Krausz 2017 NY Slip Op 33429(U) May 24, 2017 Supreme Court, Orange County Docket Number: Index No. EF005991-2016 Judge: Robert A. Onofry 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. INDEX NO. 1f'l1?1~95920AM) EF005991-2016 !FILED: 05/!W43/l19:L FILED: ORANGE COUNTY CLERK 05/24/2017 11:58 AM DOC. NO. NYSCEF DOC. NO. 25 NYSCEF: 05/24/2017 05/24/2017 RECEIVED NYSCEF: SUPREME COURT-STATE OF NEW YORK IAS PART-ORANGE COUNTY Present: HON. ROBERT A. ONOFRY, A.J.S.C. SUPREMECOURT:ORANGECOUNTY - - - - - - - - - - - - - - - - . X To commence the statutory time FEDEX CORPORATE SERVICES, INC., Plaintiff, period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. - againstIndex No. EF005991-2016 SAM KRAUSZ d/b/a M & B SUPPLIES, INC., DECISION AND ORDER Defendant. Motion Date: May 17, 2017 -~--------------------X The following papers numbered l to 8 were read and considered on a motion by the Plaintiff, pursuant to CPLR §3212, for summary judgment on the complaint Notice of Motion - Singler Affidavit - Exhibits A-D ............................................................. 1-3 Affidavit in Opposition- Krausz- Exhibits A-C- Memorandum of La. ................................. 4-6 Reply Affirmation - Stein- Exhibit A...................................... ........................ ...................... 7-8 Upon the foregoing papers, it is hereby, ORDERED, that the motion is granted. Factual Background/Procedural History The Plaintiff FedEx Cmporate Services, Inc. alleges that, between August 4, 2015, and November 24, 2015, it provided work, labor and services to the Defendant Sam Krausz in the amount of$10,220.62, as per an agreement between the parties. Further, it alleges, there is an account stated between the parties for that amount. Appended to the complaint are (I) invoices generated by "FedEX," with a billing address in [* 1] 1 of 55 sa INDEX NO. 1f'l1?i~ EF005991-2016 9 2 uAMj [FILED: os,~43/l19:L FILED: ORANGE COUNTY CLERK 05/24/2017 11:58 AM NYSCEF DOC. DOC. NO. NO. 25 RECEIVED NYSCEF: NYSCEF: 05/24/2017 05/24/2017 Pittsburgh, Pennsylvania, payable by M & B Supplies, Inc., and (2) and a statement ofaccount, dated July 13, 2016, from the Plaintiff to "SAM KRAUSZ INDIVIDUALLY DBA M & B SUPPLIES, INC." Sam Krausz, inter a/ia, denies the material allegations of the complaint. Further, he alleges, he never engaged in business under the name M & B Supplies, Inc., which is a corporation, not a d/b/a. The Plaintiff now moves for summary judgment. In support of the motion, Joe Singler, the manager of the Plaintiff, avers that he has personal knowledge of relevant facts, and had reviewed the books and records of the Plaintiff. Singler asserts that the charges at issue arose from courier services provided to Krausz during the period stated. Further, he argues, Krausz's answer does not raise a triable issue of fact as to the same because it consists of mere general, conclusory denials. In opposition to the motion, Krausz does not dispute that M & B Supplies, Inc. had a shipping account with a company that called itself "FedEx" or " Federal Express," or that it was billed as alleged. However, he avers, he is a natural person, and had never engaged in business under the name M & B Supplies, Inc. or any variant thereof. Indeed, he asserts, no such d/b/a exists. Rather, he avers, M & B Supplies, Inc. is a corporation. Further, he asserts, although he is an officer of the same, he never agreed to or bound himself to be personally liable for any debts incurred by M & B Supplies, Inc. Indeed, he notes, the invoices appended to the complaint are addressed to M & B Supplies, Inc., not him personally, and direct payments to "FedEx," not the Plaintiff ("FedEx Corporate Services, Inc."). 2 [* 2] 2 of 55 INDEX NO. 1f'l1?1~ EF005991-2016 9S82 0AMj !FILED: 05/!W43/l19:L FILED: ORANGE COUNTY CLERK 05/24/2017 11:58 AM DOC. NO. NO. 25 NYSCEF DOC. NYSCEF: 05/24/2017 05/24/2017 RECEIVED NYSCEF: In reply, counsel for the Plaintiff, Ari J. Stein, notes that Krausz fails to mention that M & B Supplies, Inc. was dissolved on April 27, 20 I I, due to a failure to pay taxes. Thus, he argues, Krausz, who continued the business, may be held personally liable for the charges at issue. Finally, Stein notes, the statementofaccountappended to the motion papers clearly identifies the sending party as the Plaintiff, and the recipient as Krausz, in his individual capacity. Appended to the reply affirmation is a report from the New York State Department of State indicating that M & B Supplies, Inc. was dissolved on April 27, 2011. Krausz is listed as the contact for the corporation. Discussion/Legal Analvsis A party seeking summary judgment bears the initial burden of establishing a prima facie entitlement to judgment as a matter of law by tendering competent evidence, in admissible form, sufficient to eliminate any triable, material issues of fact from the case. If the moving party fails to meet this burden, the papers submitted in opposition need not be considered. If the moving party makes such a prima facie showing, the burden shifts to the opposing party to demonstrate the existence ofan issue of fact requiring a trial. Phillip v. D & D Carting Co., Inc., 136 A.D.3d 18 [2 nd Dept. 2015]; Dempster v. Lio/ti, 86 A.D.3d 169 [2 nd Dept. 2011]. An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness oftheaccount items and the specific balance due. Bashian & Farber, LLP v. Syms, 147 A.D.3d 714 [2nd Dept. 2017]. Although an account stated maybe based on an express agreement between the parties as to the amount due, an agreement may be implied where a defendant retains bills without objecting to them ½ithin a reasonable period of time, or makes partial payment on the account. Bashian & Farber, LLP v. Syms, 147 A.D.3d 714 [2"' Dept. 2017]. The 3 [* 3] 3 of 55 INDEX NO. 1f'l!Ji~95920AM) EF005991-2016 !FILED: 05/~43/l19:L FILED: ORANGE COUNTY CLERK 05/24/2017 11:58 AM DOC. NO. NO. 25 NYSCEF DOC. NYSCEF: 05/24/2017 05/24/2017 RECEIVED NYSCEF: "agreement" at the core of an account stated is independent of the underlying obligation between the parties. Bashian & Farber, LLP v. Syms, 147 A.D.3d 714 [2 00 Dept. 2017]. Here, the Plaintiff demonstrated,primafacie, that it sent an account statement to Krausz, which Krausz had retained without objection. Typically, this would be sufficient to demonstrate aprimafacie entitlement to recover on an account stated. However, the Court was struck by the fact that Krausz is named as "d/b/a M & B Supplies, Inc.," which appears, on its face, a legal impossibility, and was not otherwise explained in the complaint. Indeed, this very issue was expressly raised in the affidavit from Krausz. However, based on the Plaintiff's reply papers, and the document appended thereto, and a search of the New York Department of State corporation database, it is clear that Krausz has attempted to mislead thi s Court, as M & B Supplies, Inc. was dissolved in 201 I, which is before the period at issue. Thus, Krausz can be, and is, held personally liable for the debts incurred by the defunct corporation. Spring Val. Improvements, LLC v Abajian, 40 A.D.3d 619 [2 nd Dept. 2007]. Accordingly, and for the reasons cited herein, it is hereby, ORDERED, that the motion is granted as to the cause of action sounding in an account stated; and it is further, ORDERED, that the Plaintiff may enter a judgment against Sam Krausz, personally, in the amount of$10,220.62, without further order or direction of this Court. The foregoing constitutes the decision and order of the court. Dated: May 24, 2017 Goshen, New York 4 [* 4] 4 of 55 INDEX NO. 1f'l!Ji~ EF005991-2016 9S82 0AMj !FILED: 05/~43/l19:L FILED: ORANGE COUNTY CLERK 05/24/2017 11:58 AM DOC. NO. NO. 25 NYSCEF DOC. TO: NYSCEF: 05/24/2017 05/24/2017 RECEIVED NYSCEF: Stein & Stein, LLP Attorney for the Plaintiff Office & P.O. Address P.O. Box 30, One Railroad Square Haverstraw, New York 10927 Kakalcc & Schlanger, LLP Attorney for the Defendant Office & P.O. Address 65 Broad Street, 18th Floor New York, New York 10004 5 [* 5] 5 of 55

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