Lightstone RE LLC v Zinntex LLC

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Lightstone RE LLC v Zinntex LLC 2022 NY Slip Op 32931(U) August 25, 2022 Supreme Court, Kings County Docket Number: Index No. 516443/21 Judge: Leon Ruchelsman 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. 516443/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 08/30/2022 SUPREME COURT OF THE ST.ATE OF NEW YORK COUNTY OF .KINGS : CIVTL TE~M: CQMM_ERC:IAL 8 ----------- -. -- . - --------- --------· -. -· .-· -----·-x· LI.GHTS·TONE R~ LLC, Decisio11 and order Plaintif f, Index No.. 5. 164 4·3 / 2t - against ZJNNTEX LLC, BARRY Z_INN .. ------ -- --~---~- - & RICKY ZINN, August 25, 202.·2 De_f endan ts·; ------------~- --- X. PRE.SENT: HON. LEON RUCHELSMAN The plainti ff bas m9ved pursuan t summary judgeme nt arguing the:r·e are to CPLR §3212 s·e:eking no question s o=f fact ,the- installm en t agreeme· nt entered into betw~en the parties govetn·s the obligati ons of the ·parties . motion. The· defenda nts oppos·e the Papers ·were submitte d by the· p~rties and .a"fter revie-.;,in .g all the argumen ts this court now makes the followin g determi nation. As recorc:l.ed in a prior order, on April t3, 20~0 the parties entered into an agreeme nt whereby the plc;1inti ff agreed to purchase p.e1;=1onal protecti ye equipme nt from. the. defencia nts. The next day they entered into. another a.greeme nt whereby , again, the plainti ff would purchase pe,rsoha l protecti ve equipme nt from the:: de.fenda nts. ';r:'he :plainti ff wir.ed $2,085,0 00 p:ursuan t f9 the :agreeme nts,. .howeve.r , the. complai nt alleges the defenda nts failed tq deliver t.l1e equ-iptne nt as outlined in the: agre~men .ts. Thus, on M_ay 6, 2020 the plainti ff notified the _defenda nts they were ·c-ance:11-ing the. contra.c t a_ild s.oug_tit a refund-. .On.. June 2$, 2020 thi;:: pa.r:t;:ies ent_eted into an a9reeme_ nt w-her~by def1=nda nt~ agreed [* 1] 1 of 10 INDEX NO. 516443/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 08/30/2022 to return $1,475,000 of the funds to the plaintiff . comprised the total amount owed to the plaintiff. . That arnount The agreement was in the form of text messages sent between the parties. Pursuant to the agreement the defendant was required to make .four installme nts of $368,750 to satisfy the return of the total amount owed. 'I'he payments were all due by September 25, 2.020. The plaintiff received $475,000 pursuant to ·that agreement , tl)us the plaintiff asserts they are still owed one million dollars. The plaintiff now moves seeking summary judgement arguing the text messages between the• parties created a duly binding executory accord pursuant to General Obli_gatio ns Law §15-501(3) for which the defendant has nb defense. Alternativ ely, other documents between the parties establish the. defendant has no defense. Thus, the plaintiff seeks summary judgement conceni.ing the one million dollars still outstandin< ;J. The defendant opposes the motion arguing there are questions of fact whether the text messages entered between the parties ever created a binding accord. Conclusio ns of Law A court c9-n grant summary judgment where the movant estc!-blish es suffici·en t evidence, which would compel the court to grant judgment in his or her favor as a matter of law. However, where material facts in a case are in dispute, summary judgment cannot be granted (Zuckerman v. City of New York, 2 [* 2] 2 of 10 49 NYS2d 557, INDEX NO. 516443/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 08/30/2022 427 NYS2d 595 [1980]). Generally , it is for the jury, the trier of fact, to determihe the legal cause of any injtiry (Aronson v. Rora~e MahnBarnard School, 224 AD2d 249, 637 NYS2d 410 [Pt Dept., 1996]). However, where the court can only draw one cdncli.1sio n from the facts, the trial court may decide the legal issue as a matter of law (Derdiaria n v'. Felix Contractin g Inc .. , 51 NY2d 308; 434 NYS2d 166 [1980]). Thu~, to succeed on a motion for summary judgment, the movant must make a prima facie showing of an entitleme nt as a matter of law by offering evidence demonstra ting the absence of any material issue of fact Medical Center, (Winegrad V. New York Universit y 64 NY2d 851, 487 NYS2d 316 [1985]). Moreover,. a movant cannot succeed upo.n a motion for summary judgment by pointing to gaps in the opponent' s case, because the moving party mµst affirmativ ely present evidence demonstra ting the lack of any questions of fact [2d Dept . , (Velasquez v. Gomez, 44 AD3d 649, 843 NYS2d 368 2 007 ] ). . It is well settled that an executo.ry accord is an agreement to resolve an existing dispu:te between.p arties (Ognenovs ki v. Wegman, 275 AD2d 1013, 713 NYS2d 594 [4 th Dept., 2000]). An executory accord must be in writing and signed by the party to be bound (Frank Felix Associate s Ltd., v. Austin Drugs Inc., 111 F3d 284 [2d Cir. 1997]). Further, pursuant to Technolog y Law §304(2) J [* 3] 3 of 10 INDEX NO. 516443/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 08/30/2022 "an electronic signature shall hav,e the same .v-alidity and ~ffeot a-s the. use of a s.1._gnature af.£.ixed by ha:n.d" and inc.ludes "an electronic sound, sym_bol, or process, attached to or logically a.ssociated with an electronic reco·rd and execu.ted o-r- adopted by a person with the intent to sign the record'' {Technology Law §302 (3)). .While some .c·orrimentarie•s have· e·xpres·sed First,. there q.re qµ.-~stions wtieJ:her _text me'ssage-~.- and, emojis in particular satisfy the .statute of frauds (see., generally, When a Picture is Not Wor·th a Thousand Words: Why Ero.ojls Should Not sa,.tisf;y the -Statute of Frauds._, by -Moshe B:erliI)e·r;: c;_ardo;zo Law Review 2020]). This is particularly true concerning a thumbs up emoji. which may convey dif"fe·rent meanings {_ict·., at Footnote 19, see, als.o,.. Ernoj.Ls and th~ La~, bY Eri~ Gdldman, Washington Law ~eview 2018). In any event, even if such .an e_lect:ronic signature ir1 the farm of·. an -emo j i can c_rea t_e .a val id coli.tr act, there st i 11 must be a meeting of the minds AD3d 1, and an intent to be so bound (Naldi v. Grunberg, BO go·s "NYS2d ·639 [Pt Dept., 2010}). T_h_us, an e~arnin.atiori of the text mes--sage:s sent between the parties is there.fore. necessary. The parties texts .b 9 ck and forth .concern 9-eals fo-r protectiye .equipment, chang_e·s in prices -and the fa.ct the g.oods to plaintiff were never delivereq.. On June 22, 2020 the, defendant acknowledged _he owed the plaintiff money and offered to pay some ·of the funds by the beq.inning of July. ·'i'he next day the plaintiff sent a text which. stated \\how do you 4 4 of 10 ------- ------- --------·····- ------- ------- ------- [* 4] INDEX NO. 516443/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 08/30/2022 expect me to be protected " ( ~ , T.ext sent June 2 4; 2020 included within Exhibit H to Plaintiff 's ll'lotion [NYSCEF #43J). The .defendant responded that he would not sign a "PG" for anyone, presumabl y referring to a personal guarantee (id). The following day the plaintiff offered to purchase goods for a certain price and that deal was rejected by the• defend.ant . texted that he was still The plaintiff then owed significa nt sums. The defendant responded with rtum:erous texts inclueiing that "have the attorneys work it out and we can be done" and "I can keep paying you with no written a9reemerit 11 (id). The plaintiff asked for a personal The plaintiff sought gu,nantee and again the defendant re.fused. The closure and asked the defendant to propose a resolution . plaintiff further wrote "you won't sign saying. an agreement is what your So how I can make a deal this way?" (id). The def·endant responded "have your lawyer call rri.ihe and work it out. want to g.o back and forth" I do not More texts were sent to each (id) . other and then the plaintiff texted "are you honoring what you said without a pg?" to which the defendant rEisponq.ecl "I will continue to pay you .as is but you give me the time to do it as you said you would'' ( id) . agreeing to pay me The plaintiff theri texted "so ar.e you over the next 3 months 1,475,000 put for exception of signing; a PG?" and at 5: 24 : 12 PM the defendant responded ''I arri. not going to sign anything but I will have you The parties continued to paid out within 3 mbnth,s" (id). 5 5 of 10 [* 5] ------- ------- ------- ------------- ·-·····• ····-··· --··--~----- INDEX NO. 516443/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 08/30/2022 negotiate the terms of the payment amount and schedule and finally th_e plaintiff sent a text summarizin g the payments expected which included four pi:i.yrri.ents of $368,750 on July 15, August 15, September 15 i:i.nd September 25, 2020. At 5:33:38 the same day, the defendant responded with a 'thumbs up' emoji. The plaintiff argues the thumbs up emoji c'.bnstitut ed a While the legal use of such an signature of an executory accord. emoji is questiona ble as noted above, there are surely questions of fact whether the defendant inte'nded to be bouri.d by that em:oj i where only nine minutes beforehan d the defendant categoric ally asserted he would not sign any document. There are surely questions of fact whether he ever intended to be bound by a written text message in the form of a thumbs up emoji. Therefore , this case cannot be summarily decided on this basis. Likewise, the fact the defendant partially performed and made payments to the plaintiff does not demand a summary determina tion the remaining money is owecL the de:f:ep.dant paid $75,000.dd on July 29, The pla.i,ntif f asserts 2020, $200,000.Q O on August 19, 2.020, $100,000.0 0 on August 28, 2020, and $100,000.0 0 on September 11, 2020. However, in order to establish part performan ce, the performan ce must unequivoc. 3.lly refer to the agreement and mere pa.rt performan ce is insufficie nt (Messner Vetere Berger McNamee Schmetter er Euro RSCG v. Aegis Group, -93 NY2d 229, 689 NYS2d 674 The plaintiff 's payments were [1999]). 6 [* 6] 6 of 10 INDEX NO. 516443/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 08/30/2022 not timely, were for differ:e nt amounts requited . by the.· ag'.teeme nt and the amounts paicl.. were differe·n t ·trorn each other. Thu·s., there .are question s of fact whether those payment s unequiv ocaliy refer to the agreeme nt. Consequ ently, the motion see.king sqmmary judgeme nt on this basis is denied. HowE!yer, ther.e is no ciis:pute the defenda nt owes the money sought. The technic al reason for denial of the motion, .essenti ally because of the .statµte of fr~u.ds, do_e.s not alter the re:a.lity th;3.:t money i.s actmi ttedly owed.. '.j:hus, the first agre.erne nt states de.l_ive-ry of inost of the goods wouid .be by April 22_, 2020 with th.e remaind er by April 2SI, 2.020 -and. the se_cond agreeme nt p,rovid.£3.s no delivery . 9-at_e. However ; ari ema.il se-n:t by the plaiI1ti ff on April 13; 2..02.0- state$- that ''if .Sel.ler fails to dEHive.r g:oods to th_e: buyer based on sho.uld imm!=!di ately rEJturn the funds-. the tim_es agreed on, Seller Timiri-9 can lJe· adj_u9_t.e d as ~g~eeci ·l:le:t,ween the part.iesn (s·ee,. E"""'mail ·sent by Barry Fc).r.l<:as; April, 13; 202..0 at 3·: 38 .P-M, inclucied within E.}::hipit O to .Pla.in:t.i f p· s Motion, .[NYSCEF #39} )_. "c·onfirm ing a.11'' (id.) . T.he ·d.efepda nt re~pond'; !d ·Th.ere rea·_lly can _be no ·dispute that such- .con-firm at:i;on was .an indepe-p dent acquiesc enc.e agreeing to .be bou:nd by all the te.rms ·of the- email. Th.us, accor~Hn g. to the Uniform Comme·rc .ial Code "between mer.chan ts,- i•f within a reas-ona:.b1e· time a writing in confir:m atioh cff the contrac t ... is received apd the party receivin g· i t has r~ason to know its content s, ·1t satisfie s 7 [* 7] 7 of 10 INDEX NO. 516443/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 08/30/2022 the requirem ents .•. unl,e,ss written: notice contents is given within ten days after 201 (2) ) . of it obj·ectio n to its is received ·" (UCCC §2- ''Ele.ctro nic commun ications between rnerchan ts,·-provi ded. that they are sufficie ntly precise- can also serve as writings confirm ing an.agree ment" (Antifun Limited T/A Premitim vape ~Wayne Industri es LLC, 2022 WL 2905368 [S.D.N.Y . 2022]). tn this .case, t:.he email .s~ht containe d the followin g specific : infcirm<; ltion "l. 5,000,00 0 3 p.:ly mask (.as agreed .i,.n: pr,evi9u s emails with proper docQroen ;tati,on) price of .49 per ma:Sk for a total price of $2i450,_0 00~0Di 2. 200(000 KN95 at 2.50 per mas~ tor a tot~l price of. -$:500, 000, 3. Deliv.ery o:E :at 2-3~•'.L betwe.e,n April 2.0-2.2-rid. Balanc.e to fol.low as~p, no later then 27 th . ; 4. Delive+y of KN95 between. Ap-ril 20-.22hd, .s:. Deposit wires now c;,f 1,450,00 0._00, 6. Balance· Due upon rec~ip.t o-t: go_q_o.s, by buyer" :(id) .. f 7. L_ocal Delive-ry to b.e paid The. emc1.il did. conclude that ''a PUrcha~e i:igr.eeme nt and Invoice to be complete ton:i,gh.t: with the. remainin g details·" (.id).. However , there _can be-_ no question : the email w-as sµ·fficie nt.:ly deta"i.le. d and encompa ssed all the r·e:lev-!=l,n t te:"rms- "l:egardi ng goods,. price anc\ deli very. 'rhe defenda nt argues that they r·ejected a propose.c l contrac t sent by the plainti ff 1-ate-rthat cta·y,. highligh ting the fact the email s.en:t:: did not. bind the parties at all. However , the_ em.ail noted abov·e was :s·e-rit on. April l"J, :2020· in the· aft-erii:o on. that day- will p·rove helpf:ul. Thus, a time line· of the emaits sent At 12 :58 l?M the pla.intf.f f· sent an 8 [* 8] 8 of 10 INDEX NO. 516443/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 08/30/2022 e_m-:3,il. .inquiring wh,_ether the a<Jreemf:_rtt contained' insuranc-e · or _q:uarantees. At 3: 12 PM the d\':!fenda.t1t r~.sponded "our Irtvtiice is the con tract . We handle f re i gh t a·nct insurance on our own;, (see, E-mail _sent by Ricky Z"i-nn, Apr-il 1.3, 20.20 at 3·: 12 PM, incll,ic;ied within Exhibit B to Defendant's Opposition, [NYSCEF #4 8]) . That prompted the abov.e detailed .email which· ·provided all the· rte,cessary t-e-rtns and the defendanti·-s confirmation nine minutes .later at 3:47 PM. At 11:58 PM, shortly before- midnight the _plaintiff se.n_t another email which t:ontairted a sa~pl·e contract which acco:idirig to the defendant was summarily rejected by the ctefendant. However, that rej.ection later in: the day has no _beari·rtg upon the earli·er email which co·nta:Lned ·all tn.e information necessary. contract reqlly supports In fa~t, thi; rejection of that proposed the· conclµsion that the defendant's confi;r:matiori of the email ea-rlier in the day was in ·fact intended to be a binding agreement. L:i,kewise, an email sent by the p.la·intiff the_ foil.ow.;Lng ..d~y r:eg__arding. the second agr..eem:ent was similarl¥ confirmed by th.e def¢:nqari;t_ in an em.ail shortly thereafter. Thus, there really are· no questions of fact the plairi1::.iff is- entitled to a return of one mill-ion dollars p.wed by the defendant. Thus, there are no questi.9ns o-f fact that must be res-ql ved. a_nd dis.covery wi.11 riot serve to clarify ·any outstanding issues. ·Theref:ore, while the text m_es;;age.s .may not have been sufficient to afford the plaintiff s.urtunary relie.f, surely the 9 [* 9] 9 of 10 FILED: KINGS COUNTY CLERK 08/30/2022 01:09 PM NYSCEF DOC. NO. 58 INDEX NO. 516443/2021 RECEIVED NYSCEF: 08/30/2022 agreements, including the binding ema ils, e l imi nate a ll q uestions of fact the defendant owes the plain ti ff one mil l ions dollars. On that basis the mot i on seeking summary judgement the plaintiff is entitled to one million dollars is granted. So ordered. ENT ER: DATED: August 25 , 2022 Brooklyn N.Y. Hon. Leo n Ruchelsman JSC 10 [* 10] 10 of 10

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