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HATZLACHH SUPPLY v. MOISHE'S ELECS.

March 4, 1993

HATZLACHH SUPPLY INC., Petitioner,
v.
MOISHE'S ELECTRONICS, INC., Respondent.


DUFFY


The opinion of the court was delivered by: KEVIN THOMAS DUFFY

KEVIN THOMAS DUFFY, D.J.:

 Background

 Petitioner Hatzlachh is a New York corporation engaged in the manufacturing, importing and selling of electronic merchandise, with its principal place of business in New York. Respondent Moishe's is a Texas corporation in the business of exporting electronic merchandise to Mexico, with its principal place of business in Texas. The respondent began purchasing goods from petitioner approximately two years ago. Prior to this proceeding, respondent and petitioner entered into approximately 42 transactions for a total dollar amount of approximately $ 1.85 million.

 All of the business transactions between the parties involve the respondent telephoning the petitioner in New York to purchase electronic merchandise. The petitioner would then prepare an invoice and send it by facsimile transmission to the respondent in Texas on the day or the day after the oral purchase order. Each invoice set forth the prices and quantities of the merchandise ordered, and included an arbitration provision on the face of the invoice, located at the bottom set forth in capital letters. In connection with the facsimile transmission sent to the respondent, petitioner would also send a facsimile transmission to the warehouse where the goods were stored, authorizing the release of the merchandise to the respondent. *fn1" The respondent would then arrange to pick up the merchandise at the warehouse via tractor-trailer.

 In each of the forty-two transactions that preceded the transactions at bar, the invoices sent to the respondent by facsimile transmission included an arbitration clause on the face of the invoice. Prior to this petition, the respondent never objected to any of the terms of the invoices.

 The instant dispute arises out of two transactions occurring on or about January, 29, 1992, and January 30, 1992. The sequence of events outlined above also occurred with respect to the two transactions at bar. Focusing on the first transaction, the respondent telephoned the petitioner on or about January 29, 1992 to order 535 video cassette recorders; 300 13-inch remote color televisions; 1,000 5-inch black and white televisions am/fm radio combination; and, 152 19-inch remote color televisions in the total amount of $ 200,253.50. Petitioner prepared invoice number 10222 dated January 29, 1992 and sent it by facsimile transmission from petitioner's New York office to respondent in Texas on January 29, 1992.

 With respect to the second transaction, the respondent telephoned petitioner on or about January 30, 1992, and ordered an additional 95 13-inch remote color televisions in the amount of $ 15,290. Similarly, petitioner prepared invoice number 10241 dated January 31, 1992 and sent it by facsimile transmission to respondent in Texas on February 3, 1992.

 The invoices in question each contained an arbitration provision on the face of the invoice, located at the bottom in capital letters. The arbitration provision provided as follows: "ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS SHIPMENT OR ANY ORDER UNDER WHICH GOODS WERE SHIPPED SHALL BE SETTLED BY ARBITRATION IN NEW YORK CITY IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK."

 On or about January 29, 1992, respondent dispatched an empty tractor-trailer to the warehouse to pick up the merchandise for export to Mexico. The merchandise was loaded onto the respondent's trailer on or about January 30, 1992. However, the respondent determined that it was too late to export the merchandise to Mexico and decided to transport the merchandise at a later time.

 In the interim, the trailer, loaded with the electronic merchandise, remained in a parking lot outside of the warehouse. On or about February 6, 1992, the respondent was notified that the trailer, along with the merchandise, was the subject of a theft. The trailer was subsequently discovered on some side road completely empty. Thereafter, the respondent failed to pay the petitioner for the merchandise that was stolen out of the trailer.

 The respondent did not object to the terms of the invoices in question until February 24, 1992. *fn2" By letter, dated February 24, 1992, respondent rejected petitioner's right to arbitrate, claiming that arbitration was not discussed when the order was placed. Additionally, on February 24, 1992, the respondent commenced a lawsuit against Hatzlachh in the 138th District Court of Cameron County Texas under Cause Number 92-02-1064-B (the "Texas State Court Action"). *fn3"

 On or about March 24, 1992, Hatzlachh interposed an answer in the Texas State Court Action generally denying the allegations and raising the affirmative defense that the complained of controversy is governed by an arbitration provision. Also on or about March 24, 1992, Hatzlachh filed a Plea in Abatement in the Texas State Court Action, requesting that the Texas action be abated pending arbitration in New York, or in the alternative, seeking a motion to dismiss. On or about March 26, 1992, Hatzlachh withdrew its motion to dismiss in the Texas State Court Action. Thereafter, on or ...


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