United States District Court, E.D. New York
[Copyrighted Material Omitted]
For Plaintiff: Richard T. Cordano, Esq., Russo, Karl, Widmaier and Cordano PLLC, Hauppauge, NY.
For Defendant: Mark L. Cortegiano, Esq., Middle Village, NY.
MEMORANDUM & ORDER
Joanna Seybert, United States District Judge.
Currently pending before the Court are: (1) defendant Crystal Cove Seafood Corp.'s (" Defendant" ) motion to dismiss the Complaint; and (2) plaintiff Good Luck Product Co. Ltd.'s (" Plaintiff" ) cross-motion to amend the Complaint. For the following reasons, both motions are GRANTED IN PART and DENIED IN PART.
Plaintiff commenced this action on March 17, 2014 against Defendant in connection with seven shipments of shrimp it sent to Defendant from August 2008 through October 2008. Plaintiff packages, sells, and exports frozen shrimp from Thailand. (Compl. ¶ 6.) Defendant imports frozen seafood. (Compl. ¶ 7.)
Plaintiff and Defendant began doing business with one another in 2004. (Compl. ¶ 8.) For each relevant shipment, Defendant issued an irrevocable letter of credit to Plaintiff using either Bank Leumi USA (" Bank Leumi" ) or Brown Brothers Harriman & Co. (" Brown Brothers" and together with Bank Leumi, the " Banks" ) to issue the letters of credit. (Compl. ¶ 9.) Plaintiff and Defendant also entered into a written contract for each shipment in the form of a signed purchase order (" PO" ), or a " Proforma Invoice." (Compl. ¶ 10.)
Pursuant to these arrangements, Plaintiff sent Defendant seven shipments between May 17, 2008 and August 21, 2008. (Compl. ¶ 11.) According to the Complaint, the commercial invoices for the fifth and sixth shipments deviated from the Proforma Invoices. (Compl. ¶ ¶ 18, 19.) However, as these deviations in quantity and amount were less than ten percent, the terms of the contracts were still met. (Compl. ¶ ¶ 18, 19.)
Plaintiff alleges that, although Defendant made seven partial payments from January 14, 2009 through September 22, 2009, the " payments did not match the invoice amounts" and Defendant did not indicate the invoices to which the payments corresponded. (Compl. ¶ 21.) Plaintiff applied the payments to the oldest open invoice first. (Compl. ¶ 21.) Ultimately, Defendant paid $516,066.00, leaving a total balance of ...