The opinion of the court was delivered by: LEWIS A. KAPLAN
This is an action to recover $ 95,762.67, which is the balance due for bunkers delivered to the M/V Alpha Star in 1993 in Amsterdam and Dunkirk. The delivery of the bunkers and the amount of the unpaid balance are undisputed. Defendants assert, however, that the parties entered into a binding agreement to settle the liability for $ 40,000 and that plaintiffs have reneged. The matter is before the Court on cross-motions for summary judgment.
The pertinent facts are simple and undisputed in all respects save one. In October and November 1993, plaintiff Etablissement Asamar Ltd. ("Asamar") delivered bunkers to the M/V Alpha Star in Amsterdam and Dunkirk at a total price of $ 205,762.67, of which $ 95,762.67 remains unpaid. The vessel subsequently sustained severe hull damage by reason of heavy weather and/or peril of the sea and became a total loss. The vessel's owner, Lone Eagle Shipping Ltd. ("Lone Eagle") thereupon appointed Shipping and General Consultants, Ltd. ("S&G") to marshal its remaining unencumbered assets and to seek to negotiate settlements of all outstanding claims. It is these negotiations that give rise to the dispute in this case.
On June 17, 1994, S&G conveyed to plaintiff Asamar, Inc. the owner's offer to settle for 35% of the amount due (Stratakis Aff. Ex. 11), which was $ 33,516.93. On June 20, 1994, Asamar responded as follows:
"Although we appreciate your previous offer to settle by paying 35 pct of the amount due on the above bunker debt we feel it is still alittle [sic] low. Especially after owners promised full payment on more than one previous occasion.
"We are willing to accept a flat amount of USD 40,000.00. If owners agree, please remit funds . . . " (Id. Ex. 12)
It concluded with the phrase "please advise." (Id.)
There is no evidence of any response by the owner, at least prior to August. Defendants, however, have submitted an affirmation claiming that plaintiffs' principal, Mr. Pappaceno, stated in July or early August that he had agreed with S&G on a $ 40,000 settlement, but had been unable to obtain information as to when he would be paid. (Dushas Aff. P 5) Mr. Pappaceno has submitted a supplemental affidavit denying Dushas' assertion and stating that he never reached any such agreement. (Pappaceno Aff. P 9)
Whatever may have passed between Dushas and Pappaceno and between Pappaceno and S&G, plaintiffs' counsel prepared a letter to the Le Timon, one of the owner's agents, dated August 9, 1994, in which they demanded payment of the full $ 95,762.67 plus interest. (Economou Aff. Ex. 4) This letter appears to have been received by Le Timon on August 16, 1994. (Id.) It is undisputed that this letter was in the hands of Tom Dushas, one of the defendants, no later than August 18, 1994, and was received by S&G on August 19, 1994. (Id.)
S&G, for its part, sent a facsimile, dated August 17, 1994, to Asamar which stated:
"Further to our previous correspondence we are pleased to inform you that we expect to collect moneys due to the Owners of the [Alpha Star] towards the end of September.
"Assuming that everything goes well and the amounts are collected on time we shall be able to pay you in September ...