identity with the genuine item. Thus, the Volumetric test did not directly counter the plaintiff's proof that the Westwind pieces are counterfeit. Tr. at 232.
31. Cosmair also conducted blind "organoleptic" or sensory odor profile tests of the Westwind pieces against a stock sample. These tests were conducted by Nancy Williams, an organoleptologist at Cosmair. Williams concluded that the Westwind pieces were counterfeit because their organoleptic profiles were "significantly different" from the stock sample. Pl. Ex. 23; Tr. at 293.
Source of Origin of the Westwind Pieces
32. Petzenbaum testified that the pieces he sold Westwind originated from Procosa. Tr. at 376. He purportedly made his purchases from various Brazilian retailers, but where those retailers obtained the pieces was outside his personal knowledge. Thus, defendants offered no credible evidence tracing the origin of the Westwind pieces to Procosa.
33. Petzenbaum also commented about Procosa's problems with manufacturing Drakkar Noir of uniform quality. Tr. at 385-87, 450. Petzenbaum's testimony on these matters was beyond his personal knowledge and consequently inadmissible. Thus, defendants offered no credible evidence concerning its theory that Drakkar Noir manufactured by Procosa is so poorly made that its chemical composition may change over time and come to resemble counterfeit formulations.
34. The Court concludes that Model proved by a fair preponderance of the evidence that the Westwind pieces were counterfeit based on the following: (1) Cosmair's gas chromatography test results; (2) Cosmair's organoleptic test results; and (3) a lack of evidence tracing them to Procosa.
III. Conclusions of Law
1. Diversity subject matter jurisdiction over this suit exists because there was complete diversity of citizenship at the time the suit was filed and the amount in controversy exceeds $ 50,000.00. 28 U.S.C. § 1332. New York law applies to this action. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941).
2. Defendants' motion to amend its answer to include the defense of accord and satisfaction was untimely and, in any event, without merit since there was no evidence of a written agreement between the parties. Settlement negotiations which lead to an executory accord are not binding unless the accord is reduced to writing. See N.Y. Gen. Ob. Law § 15-501 (McKinney 1989); Condo v. Mulcahy, 88 A.D.2d 497, 454 N.Y.S.2d 308, 310 (2d Dept. 1982).
3. That Model and Westwind had an enforceable contract for the sale of 20,000 pieces of Drakkar Noir manufactured by Procosa is not in dispute.
4. Model revoked its acceptance of the Westwind pieces in accordance with N.Y. U.C.C. § 2-608 (McKinney 1964). Model notified Westwind in a timely manner of its revocation pursuant to N.Y. U.C.C. § 2-608(2) (McKinney 1964) after learning about the nonconformity through Kroger and Cosmair. Model's decision to turn over the recalled pieces to Cosmair, through Refurbco, for destruction was reasonable under the circumstances because the pieces have been shown to be counterfeit and therefore absolutely worthless. See also Frank's Maintenance & Engineering, Inc. v. C.A. Roberts Co., 86 Ill. App. 3d 980, 408 N.E.2d 403, 408, 42 Ill. Dec. 25 (1st Dist. Ill. 1980) (whether buyer wrongfully exercised ownership over worthless goods by destroying them after it had revoked its acceptance is a question of reasonableness under the circumstances).
5. Model established by a preponderance of the evidence that Westwind breached its contract by selling counterfeit pieces which were represented as Drakkar Noir manufactured by Procosa. N.Y. U.C.C. § 2-607(4) (McKinney 1964).
6. Westwind breached its implied warranty of merchantability because the Westwind pieces do not "conform to the promises or affirmations of fact made on their containers or labels. . . ." N.Y. U.C.C. § 2-314(2)(f) (McKinney 1964).
7. Timberg acted as an officer of Westwind when he negotiated the sale of the pieces with Model. He did not act in a negligent or reckless manner in the disputed transactions. He was not aware and did not have sufficient reason to suspect that Petzenbaum was involved in the sale of suspect 1.7 oz. Brazilian Drakkar Noir pieces to Allegis Trading Corp. when the sales to Model occurred. He cannot be held personally liable under a theory of negligent misrepresentation.
8. Widman acted as an employee of Westwind in this transaction. He did not speak as Timberg negotiated the sale of the pieces with Model. Even if he did, he did not act in a negligent or reckless manner in the disputed transactions. Like Timberg, Widman was not aware and did not have reason to suspect that Petzenbaum was involved in a sale of suspect 1.7 oz. Brazilian Drakkar Noir to Allegis Trading Corp. when the sales to Model occurred. He cannot be held liable under a theory of negligent misrepresentation.
9. Model refused to pay $ 41,400 on Westwind invoice No. 5133 for the final shipment of 3,600 Westwind pieces. Def. Ex. U. Westwind is not entitled to recover on that amount and therefore its counterclaim is hereby disallowed.
10. Model's claim for $ 14,968.86 in recall expenses is hereby disallowed because it was not proven by a fair preponderance of the evidence.
11. Having determined that Westwind breached its contract and its implied warranty of merchantability to Model, the Court finds that Model is entitled to damages pursuant to N.Y. U.C.C. § 2-714 (McKinney 1964) as follows:
a. Cost of 7,247 pieces at $ 11.50 per piece (adjusted for unpaid invoice No. 5133): $ 83,340.50.
b. Handling charges on returns: $ 2,600.48.