Brooklyn Textiles LLC v TR Prime Equity LLC

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Brooklyn Textiles LLC v TR Prime Equity LLC 2023 NY Slip Op 31652(U) May 16, 2023 Supreme Court, Kings County Docket Number: Index No. 514763/2021 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. 514763/2021 FILED: KINGS COUNTY CLERK 05/16/2023 11:54 AM NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/16/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CIVIL TERM: COMMERCIAL PART 8 ---.- ··---------· -·--- ·----- . ·--·· ·--.----. -. -· -·x BROOKLYN TEXTILES LLC, Plaintiffs, - against - Decision and order Index No. 5147·63/2021 TR PRIME EQUITY LLC, DOVIE BRTKMAN a/k/a DOVI BRIKMAN, and ISSER BRIKMAN, Defendants May 16, 2023 -·-. ·- ·---· ·-·· -------· - . --· ---- .--- ··------.--x PRESENT: HON. LEON RUCHELSMAN Motion Seq. #1 The defendants have moved pursuant to CPLR §3212 seeking summary judgement dismissing the complaint on the grounds i t fails to state any caus.e of action. motion. held. The plaintiff opposes the Papers were submitted by the parties and arguments After reviewing all the arguments, this court now makes the .following determination. According to the complaint the plaintiff purchased 12,790 boxes of nitrile white medical gloves from the defendants. Each box contained 100 gloves and the total price for the purchase was $172, 800 which was paid on February 18, 2021. The. complaint: further alleges that upon random inspection of the gloves following delivery, seventy five percent of the gloves were made of latex, an inferior material to nitrile. was li:ib.eled ni t_rile .in an effort complaint further asserts the to Fµrther, every box deCt::!i ve the plaintiff. The defendants acknowiedged tll._e gooc:is were non-'-conforrning and promised a. full refund upori their return ... The gloves were all retu.rned .and no' refund was .ever ,=;ent [* 1] 1 of 6 INDEX NO. 514763/2021 FILED: KINGS COUNTY CLERK 05/16/2023 11:54 AM NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/16/2023 precipitating this lawsuit. The complaint alleges causes of action-for breach of contract, unjust enrichment, fraud and conversion. The defendants have now moved seeking summary judgement dismissing the complaint arguing the causes of action may not be maintained. As noted, the- plaintiffs oppose the motion. Conclusions of Law Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v. City of New York, 49 NYS2d 557, 427 NYS2d 595 [1980J ). Generally, it is for the jury, the trier of fact to determine the legal cause of any injury, however, where only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Marino v. Jamison, 189 A03d 1021, 13 6 NY S 3d 3 2 4 [ 2d Dept. , 20 2 1 ) , It is well settled that to succeed upon a- claim of breach of contract the plaintiff roust establish the existence of a contract, the plaintit:f's performance, the defendant's breach artd resulting damages (Harris 425, v. Seward Park Housing Corp., 79 AD3d 913 NYS2d 161 [1 st Dept., 2010]}. Fbrtheri as explained in Gianelli v. RE/MAX of New York, 144 A.O3d 861, 41 NYS3d 273 [2d Dept., 20161, ''a breach of contract cause of action fails as a matter of law in the absence :of any showing that a specific provision of the contract was breached" (id). 2 [* 2] 2 of 6 INDEX NO. 514763/2021 FILED: KINGS COUNTY CLERK 05/16/2023 11:54 AM NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/16/2023 The defendants· argue there is_ n:o. ·evidence of .any- bre-acb delivered we·re latex a:nd the glove.s sin¢e- there is no evidence . . not n:i..trile. Howf3ver, the plaintiffs have presented tJre affidavit of Geor"ge Popescu the plaintiff's managing metliber. The .affidavit describes tests that were performed on a sampling of t·he: gloves which demonstrated the g_lov-e~ were not mad$. ·of :ni trile. Those tests. surely raise quest.inns of fact wh!:!th.er, .indeed, the correct gloves were sold to the plaintiff~ The defendants argue that the plaintif'f has failed to demon_strate the tests used to cteterm1ne the gloves w~:):'.'.e not nitrile _have not been ·g. eneia_l.ly accepted in·. the sc1entific community ( Frye '-t. States. ,· 293 F. 1013 (D .:c.. C:ir., 1-923·) . That question is one that JTLi3.Y be properly raised .prior to trial and will admissibility of such evidence. United govern the As the court noted held in Adamy v. Z-:i.riakus, 92 .NY-2.d 3·9·6, 681 tiIYS.2d 463 [T998] j, 'an -expert's ._aff·id_avit proffered as- t;.he sole ev:id_ence· to defeat ~mrtini.ary' ju.d_gmenf must contain sufficient -a11e·gations to detn·on-s.trat:e tnat the qo.riclusions ..it con:t:.a.ins are more than mere speculation. and would,, if offered alone at trial, support a verdict in th.~ proponent's favor' ...... By contrast, when expert testimony is·· o:f.fered at trial,_ 'the technical o.r .-s·cie"irtif ic basi·s fq.r. a. testifying .expe.rt' s c::onclusi_ons_ ordinci.rily- need riot be a'dduc·ed as part of the proponertt 1 s direct case' ... Rather, it falls to ttie opponent of the testimony to bring out wE!al$:nesses in the ex,pe.r:t 1 s .J [* 3] 3 of 6 INDEX NO. 514763/2021 FILED: KINGS COUNTY CLERK 05/16/2023 11:54 AM NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/16/2023 quali.f"icatio ns and foundational support on c-ro:s.s-exami nation" (id). Although no"t qualified .as an expert, Mr. t:iopeBcu has suffi·cien'tly d~ll).onstrated t})e rion-.specula't ive conc.lusiori the gloves delivered were not rtitrile. The admissibility of such .evidence will be conside·red at trial. Notwithstand ing, that procedural lssue does not upde,rmine. the :questions o.f ;fact presented in this case. Consequently , the motion seeking to dismiss the brea.ch of ·contract cau$.e of action. is de.ni~d. Turning t.o the remaining c 9 qses of .action, it is true that a IT\isrepresept aticin of a material fact that is collateral to the, ·Contra.ct which Lnduces.. the other party to enter into the contract is sufficient to sustain an action of fraud and is distinct from ·the breach b··f c6ntract claim ( Selinger Enterprises Inc.,. cassuto, so. AD3d 766, 860 NYS2d 5.33 [2d Dept .. , 200.s:J). Y. However, where t.he misrepresent ation refers only to the intent or ability to pe.tform under· ·the contract then. such rni$repres~nt ation Js d1.1piica.tiv~ of the 1:::,rea.ch of contr.act claim (seer Gorman v. Fowkes:, 97 AD3d 72 6, 949· NYS.Zd 96 [2d Dept. , 2012]) case the fraud, if: any, is n.ot co1l~teral ~ In this to the bre.ach of contract cl.aim and there-fore, thEf motion seeking to dismiss the fraud cl.a.im is granted. Next, it is well settled that a claim, of unjust enrichment is not available when it duplicates or replaces a conventi6nal 4 [* 4] 4 of 6 INDEX NO. 514763/2021 FILED: KINGS COUNTY CLERK 05/16/2023 11:54 AM NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 05/16/2023 contr;a.ct or tort claim {~, ·Corse.llo v-.. Verizon New· York Inc.,,. 18 NY3d 777, 944 NYS2d 732 [2012] J • As the court noted "unjust enrichment is not a catchall :cause of act.i.on. to be used when _others fai1~r (id.) ~ $ince th€!. plaintiff has ~lready- pled :a· valid breach of contract claim the unjust enrichment claims is duplicitive -and the rnoti-◊n to dismiss the unjust enricbme_nt cause ·-o.f action is granted. Turning to the conversion claim, where such a claim arises f rorrt the same ci-rcumstance s i;iS the· brea.ch of qontra_qt claim then the conver~ion claim is d1.1plicativ~ (Connecticut New York Lighting Company· v~ Mancis Busihes-s Manag·ement Company Inc .. , 171 -AD3d 6.98, ·9.8 NYS3.d 101 [2d De_pt. ,· 2·0191). ''Tq dete-rmine-- whether a conversion claim is duplicative, courts lcfok both to the each cl:a1m is based and to the ·ailege.d. which material facts upon . . . injur-ies f-or whi.ch damages are sou_ght" (Medegua L1iC v. O;N:eill and Partners LLC, 202,2 WL 2916475 [S.D.N.Y. 2022}). Iri this case the bre_ach._ -of co.ntract claim essentially· ."asserts the defenqan.tf:l· delivered the wrb:pg qlov_e-'? 13-f1.d failed to retur.n the money already paid. funds. The ·c··onversion claim· seeks ·a return o·f thos·ei very s.-ame ThJ,Is,. the. conv.e._rsion claim relie·s- .upon the·- ·same ·facts as the breach of contri:ict claim and seeks the same damages, Ther'efore·, ''if. Plaintiff were to recqv_er o;n each claim., i t '.would in .e.ffect .be paid tw.:i,.ce' '' (id}.. Consequen:t.ly , the motion seekin.g to dismiss the conversion claim is granted. 5 [* 5] 5 of 6 FILED: KINGS COUNTY CLERK 05/16/2023 11:54 AM NYSCEF DOC. NO. 52 INDEX NO. 514763/2021 RECEIVED NYSCEF: 05/16/2023 Thus, all the causes of action are dismissed except for the breach of contract claim. So ordered. ENTER: DATED: May 16, 2023 Brqoklyn N.Y. Hon. Leon J$C 6 [* 6] 6 of 6

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