Murray Hill Apparel, Inc., a/k/a Landlubber Jeans, Plaintiff(s)/, Petitioner(s),
Bossa Yunsa, Defendant(s)/, Respondent(s).
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Attorneys for plaintiff: Bartels & Feureisen, LLP Justina Kingen, Esq.
Attorneys for defendant: Karaahmetoglu & Luz, L LP,
Thomas J. Luz, Esq.
Manuel J. Mendez, J.
The defendant, Bossa Yunsa, moves for summary judgment, dismissing the complaint and for an inquest with respect to the amount of damages to be awarded to the defendant on the counterclaims. The defendant has asserted counterclaims for breach of contract, goods sold and delivered, unjust enrichment and conversion. Plaintiff makes a cross motion for summary judgment asserting it is entitled to lost profits based upon the defendant's breach of contract, damages for breach of warranty of merchantability and damages for injury to plaintiff's reputation. Plaintiff further asserts the defendant's motion should be denied as untimely pursuant to the Order of Hon. Joan M. Kenney, dated, Janurary 17, 2007, which indicates all dispositive motions are to be completed on or before, September 16, 2007. The motion before the court was prepared on October 3, 2007 and initially returnable October 29, 2007. Defendant asserts the motion was minimally delayed because it sought to obtain affidavits from the client located in Turkey.
The defendant, Bossa Yunsa, is a garment and fabric manufacturer located in Turkey. Defendant was contacted by the plaintiff regarding the manufacture of corduroy pants under the Landlubber label. A purchase order for two thousand (2,000) units at $12.40 was sent by the plaintiff on August 9, 2005, the parties had no formal contract. The plaintiff has indicated through it's officer, Steven Rosen, that it deemed the purchase order, communicated by e-mail, a form of contract. The plaintiff indicates it relied on the defendant to provide an additional one thousand (1000) pairs of denim jeans through a third party manufacturer, that were never delivered. Neither party has annexed the purchase order for the one thousand (1,000) pairs of jeans although there were references to quality and delivery of denim jeans in the exchanged e-mails annexed as exhibits to the motion and cross-motion papers. The defendant asserts plaintiff had approved samples but then mandated an independent inspector for the goods to approve the quality. The independent inspector approved the goods on September 25, 2005. The goods were shipped per plaintiff's instruction on September 30, 2005 and received on or about October 3, 2005. Plaintiff sold the goods to a third party entity, Loehman's, and the goods were delivered to that entity. On or about December 23, 2005, plaintiff sent an e-mail rejecting the goods and refusing to pay for them. Plaintiff asserts the goods were shipped late, in part because of defendant's improper placement of a "Made in America" label that would not be able to pass through customs, and the delay resulted in a discounted price resulting in loss of profits in the amount of $14,000.00. Plaintiff has also asserted the corduroy pants had latent defects in that the snaps fell off, belt loops ripped off and back pockets separated during use which resulted in customer complaints. Plaintiff asserts it's reputation has been damaged and seeks a declaration releasing it from it's obligations under the contract.
In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Id .; Klein v. City of New York, 89 N.Y.2d 833, 834-35 (1996); Ayotte v. Gervasio, 81 N.Y.2d 1062, 1062 (1993), Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986), Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985), Zuckerman v. City of New York, 49 N.Y.2d 557, 427N.Y.S.2d 595 (1980). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues. Kaufman v Silver, 90 N.Y.2d 204, 208 (*1997); Amatulli v Delhi Constr. Corp., 77 N.Y.2d 525, 533-34 (1999); Iselin & Co. v Mann Judd Landau, 71 N.Y.2d 420, 427 (1988). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party. (SSBS Realty Corp.v. Public Service Mut. Ins. Co.,
253 A.D.2d 583, 584-85 (1st Dept. 1998); Martin v. Briggs, 235 A.D.2d 192, 196 (1st Dept. 1997)).
A motion for summary judgment can be determined by a reliance on facts appearing in the papers without regard to technical defects in the pleadings. It is proper to look beyond the defendant's answer and deny summary judgment based on true facts alleged in opposition to the motion which constitute a meritorious defense.
See Deep Blue Ventures, Inc. v. Manfra, Tordella & Brookes, Inc., 6 Misc.3d 727, 791 N.Y.S.2d 298. In addition, a defense established by the opposition papers can be sufficient though unpleaded, to obtain a denial of summary judgment. Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 451 N.Y.S.2d 663, 436 N.E.2d 1265.
Excerpts from deposition transcripts when submitted as proof for a summary judgment motion, should result in denial of the motion because they, "compel credibilty determinations to be made. It is not the court's function on a motion for summary judgment to assess credibility, draw inferences, or make findings of facts."
See,Qwerty Software, Inc. v. McKinsey & Co., Inc.,9 Misc.3d 1103 (A), 806 N.Y.S.2d 448 citing to Ferrante v. American Lung Assn.,90 ...