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Northeast Trading, Inc v. Ven-Co Produce

September 26, 2011


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:


This is an action for breach of contract and for enforcement of the statutory trust provisions set forth in the Perishable Agricultural Commodities Act of 1930, 7 U.S.C. § 499 ("PACA"). Plaintiff Northeast Trading, Inc. is a wholesale produce dealer that sold and delivered fresh fruits and vegetables to Defendant Ven-Co Produce, Inc., a corporation also engaged in the wholesale produce business. Northeast has moved for summary judgment against Ven-Co and Robert and Angela Venuti, the sole officers and directors of Ven-Co, contending that under PACA all three defendants are liable for non-payment on goods Northeast delivered to Ven-Co. Northeast also seeks pre- judgment interest and attorney's fees.

For the reasons stated below, Plaintiff's motion for summary judgment will be granted.


Northeast is a New Jersey corporation with its principal place of business in Kenilworth, New Jersey. Ven-Co is a New York corporation with its principal place of business in the New York City Terminal Market, Bronx, New York. (Cmplt. ¶¶ 2, 3) Both Northeast and Ven-Co hold licenses and operate under PACA. *fn1 (Pltf. R. 56.1 Stmt. ¶ 1) Defendants Robert Venuti and Angela Venuti are the sole principals of Ven-Co. (Id. ¶ 2)

Between May 2009 and July 2009 Northeast delivered to Ven-Co, in thirty-seven separate transactions, fresh fruits and vegetables worth more than $327,000. The produce was received in interstate commerce. (Id. ¶ 3) Northeast invoiced Ven-Co for its shipments, and included on each invoice notice that the goods provided were sold subject to the statutory trust authorized by PACA, 7 U.S.C. § 499(e)(c). The invoices also gave notice that, in the event of non-payment, interest would accrue at an annual rate of 18% and that -- in the event "overdue accounts are referred to an attorney" -- the buyer "agree[d] to pay [the seller's] reasonable attorney's fees plus the cost of all legal action." (Id. ¶ 7, Cmplt., Ex. A) In September 2009, after Ven-Co failed to pay in full for these deliveries, Northeast filed this lawsuit. (Silverstein Decl. ¶¶ 2-3) Northeast and Ven-Co then began discussions to settle accounts, and by April 2010 the parties had agreed upon the amounts due under the remaining invoices. (Id. ¶ 6) Defendants issued checks to Plaintiff in connection with two of the open invoices, but the checks were returned for insufficient funds. (Id.) Northeast alleges that Ven-Co owes $49,010, exclusive of interest, on four invoiced shipments. (Id. ¶ 7) Ven-Co -- now defunct -- disputes the amount currently owed but does not dispute that it failed to pay Northeast in full for the merchandise provided. (Def. R. 56.1 Resp. ¶ 4; Pltf. R. 56.1 Stmt. ¶ 8)



Summary judgment is warranted when the moving party shows that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). "'[W]here the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim.'" Lesavoy v. Lane, No. 02 Civ. 10162, 2008 WL 2704393, at *7 (S.D.N.Y. July 10, 2008) (quoting Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991)).

In deciding a summary judgment motion, the Court "'resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001)). However, a "'party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment . . . . [M]ere conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.'" Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (alterations in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).


PACA was enacted in 1930 to regulate the interstate sale of perishable agricultural commodities. Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d 701, 705 (2d Cir. 2007). The statute protects growers and sellers of these goods from "the abnormal risk of losses resulting from slow-pay and no-pay practices by buyers or receivers of fruits and vegetables." Id. (quoting D.M. Rothman & Co. v. Korea Commercial Bank of N.Y., 411 F.3d 90, 93 (2d Cir. 2005). Under PACA, "perishable commodities or proceeds from the sale of those commodities are held in trust by the buyer for the benefit of the unpaid seller until full payment is made." Coosemans, 485 F.3d at 705.

PACA makes it unlawful

[f]or any commission merchant, dealer, or broker to . . . fail or refuse truly and correctly to account and make full payment promptly in respect of any transaction in any such commodity to the person with whom such transaction is had; or to fail, without reasonable cause, to perform any specification or duty, express or implied, arising out of any undertaking in connection with any ...

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