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August 6, 2003


The opinion of the court was delivered by: Denise Cote, District Judge


In this diversity action, the plaintiff Premier Mountings Inc. ("Premier") has brought a partial motion for summary judgment against defendant Clyde Duneier, Inc.("Duneier") to enforce the terms of invoices sent between merchants for the sale of jewelry. The action, which was filed on June 25, 2002, was recently reassigned to this Court. For the following reasons, the motion for summary judgment is granted in part.

The following facts are undisputed. Premier manufactures jewelry. It sold many items to Duneier between September 1999 and 2001. Duneier is one of the country's largest privately owned suppliers of fine jewelry, and is in the business of [ Page 2]

purchasing jewelry for resale. Each shipment was accompanied by an invoice which included the following paragraph:

I/we agree to pay to the order of Premier Mountings Inc., as per the terms mentioned above and an additional service charge of 1.5% per month if full payment is not made within due date. I/we also agree to pay all costs of collection including court costs and attorney's fees. Positively no returns accepted without our authorization. All claims must be made within five days of receipt of goods. 20% restocking charges for returned merchandise without approval.
The invoices also included descriptions of the goods being shipped, the quantity of each item, the price, and a total amount due.

The requirement that any claim regarding the merchandise had to be made within five days was commonly employed within the industry. Duneier's own invoices for its sales included a similar five day claim requirement. Because much of the jewelry in this sector of the industry is custom made, it is expected that buyers will examine the jewelry as soon as it is received and promptly notify the seller of any defects. Duneier never made any written objection to the terms of the invoices within ten days after receiving the invoices.

Duneier made various claims concerning the quality of the goods. Most of the complaints were made weeks or even months after the receipt of the jewelry. Duneier has refused to pay for the jewelry and has returned much of it to Premier without Premier's authorization.

In response to the motion for summary judgment, the defendant did not file any counter statement to plaintiff's Rule 56.1 Statement, or any memorandum of law. Given this failure, the assertions in the plaintiff's Rule 56.1 Statement are [ Page 3]

accepted as true. See Local Rule 56.1(c); Gubitso v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998) (court "accept[ed] as true the material facts contained in defendants Local Rule 3(g) statement because plaintiff failed to file a response").

The defendant relies on a declaration from his attorney and from its President. The affidavit from an attorney is not admissible evidence. See Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983); Omnipoint Communs., Inc. v. Common Council of Peekskill, 202 F. Supp.2d 210, 213 (S.D.N.Y. 2002). Through its President's affidavit, Duneier principally argues that industry practice does not require return of jewelry within five days, despite the terms of the invoice. It argues that many of the items received from Premier were defective or delivered late, or both. It attributes the delay in returning many of the goods to Premier to the fact that they had to be retrieved from Duneier's customers.

The documents that Duneier has submitted in opposition to this motion illustrate the delay in returns to Premier. For example, the very first document it has submitted reflects an order on September 22, 2000, of 85 pieces of jewelry from Premier, and then a return to Premier over seven months later, on May 3, 2001 of 47 pieces.

Duneier has also submitted a schedule of the returns it made to Premier. The document has not been properly authenticated. Nonetheless, it reflects returns within just a few days for receipt of shipments that were in most instances made between March 27, 2001 and April 14, 2001. There is no indication in this schedule that the goods received before March 27, 2001, were [ Page 4]

ever returned within a reasonable period of their receipt. Finally, Duneier has offered two e-mail messages from Premier in May 2001, concerning ...

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