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M S Intl., Inc. v Nash Granites & Marble Inc. 2010 NY Slip Op 31493(U) June 9, 2010 Sup Ct, Nassau County Docket Number: 22692/09 Judge: Daniel R. Palmieri Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU

Present:
HON. DANIEL PALMIERI
Acting Justice Supreme Court ---------------------------------------------------------------------x

TRIAL TERM PART: 45
INDEX NO. : 22692/09

M S INTERNATIONAL, INC.,
Plaintiffs,

-againstNASH GRANITES & MARBLE INC.,
Defendants. --------------------------------------------------------------------- x

MOTIONDATE:3- 12SUBMIT DATE:5- 26SEQ. NUMBER - 001

The following papers have been read on this motion:
Notice of Motion , dated 4- 10...................................... Affirmation in Opposition , dated 5- 10......................
Reply Affirmation ,

dated 5- 21- 10...............................

This motion by plaintiff for an order pursuant to CPLR 93212 for summary
judgment on the first and second causes of action is denied.

The plaintiffs first cause of action alleges a breach of contract for goods sold and
delivered , as the plaintiff delivered goods which the defendant accepted. The defendant

has not made payments in reduction of the final balance claimed. The plaintiffs second
cause of action alleges that an account stated has resulted from the dealings between the

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parties. The plaintiff is suing to recover the remaining balance on the account , in the sum

of $18 894. 73.

It is undisputed that the plaintiff, M S International Inc. , (MSI), is a wholesale

distributor of granite and marble. The defendant , Nash Granites & Marble Inc. , (Nash), is
a marble and granite retailer. The parties entered in a contract , wherein the plaintiff
would sell and deliver marble slabs , in various sizes and colors, to the defendant.
Payment was made in installments and all deliveries were initially accepted.

Nash specified the desired sizes and grades of the incoming marble in its orders. A
number of the deliveries did not meet specifications , as some were either broken or did

not comply with specified measurements. One delivery contained one less slab than

ordered. Nash periodically contacted MSI' s New Jersey office to report the noncompliance of the slabs , whereby MSI agreed to credit Nash to compensate for the
problems.

Following the initial dealings , there was an exchange of e-mails between the

parties with regard to the number of credits to be applied to the account, as Nash expected

more credits than were originally given. Nash then sent an itemized list of the slabs that did not conform to measurements or were returned. Also included in the list were a
number of discrepancies in price between that agreed in regards to certain slabs and the

price charged by MSI. Afterwards , MSI's New Jersey office agreed to apply the credits
requested.
Six months after the final e-mail sentbetweentheparties MSIsent a letter

Nash , demanding payment for the balance owed , which had become overdue. MSI

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attached a statement of Nash' s account , which showed an open balance of$35 782.

which was 120 days late. MSI stated that the interest rate for the account was 18% per
annum for each day payment was late.

In response to MSI' s

letter

, Nash responded in writing, objecting to the stated

account balance of$35 782. 53 and contending that the final amount was $23 382.24.
Nash requested a confirmation letter for the final amount of $23 382.
, or for MSI to

send a truck to accept a return of the materials delivered. Nash later sent MSI an
additional letter , indicating that goods to be returned were valued at $16 253.
, leaving

the remaining balance at $7 128. 99. Nash requested that MSI send an approval letter and
driver to pick up the goods at Nash' s facility. Nash offered to give the driver the balance
owed. The goods were picked up by an MSI truck; however , no payment was made.
In order to make a prima facie

showing of entitlement to judgment as a matter of

law on a cause of action to recover for goods sold and delivered , a plaintiff must present

documents proving an outstanding balance that has not been paid. Itemized invoices
signed delivery receipts and affidavits from company executives are sufficient to make a
primafacie showing of entitlement.

Neuman Distributors
Drug Guild Distributors

, Inc.

Falak Pharmacy Corp.

289 A. D.2d 310 ,

311 (2d Dept. 2001);

v 3- Drugs Inc. , 277

2d 197 ,

198 (2d Dept. 2000).

In order to defeat a motion for summary judgment on a cause of action for goods
sold and delivered , a defendant must put forth evidence identifYing unresolved factual
issues , thereby raising triable issues of fact.

Created Gemstones

, Inc.

Union Carbide

Corp. 47 NY2d 250 253 (1979). Such a factual dispute renders the granting of summary

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Coleman Communications Corp. 8 AD3d

judgment premature.

Buffalo Newspress

969 969 (4 Dept. 2004). Further , under the Uniform Commercial Code , terms with

respect to which the confirmatory memoranda of the parties agree intended to be the final expression of their agreement may not be contradicted , but may be supplemented by

evidence of consistent additional terms unless the court finds the writing to have been

intended also as a complete and exclusive statement of the terms of the agreement. UCC
9 2- 202 (b).

An account stated is an agreement between parties to an account based upon prior

transactions between them with respect to the correctness of the account items and
balance due.

Jim-

Mar Corp.

Aquatic Const. ,

Ltd. 195 AD2d 868 , 869 (3d Dept. 1993)

citing Marino

Watkins 112 AD2d 511 , 512 (3d Dept. 1995). Any account stated theory

wil fail " ( w Jhere either no account has been presented or there is any dispute regarding
the correctness of the account."

JB.H,
A Const. Corp.

Inc.

Godinez 34 A. D.3d 873 , 875 (3d Dept.

2006), quoting M

McTague 21 A. D.3d 610 611 (3d Dept. 2005)

On a motion for summary judgment , the Court' s function is to decide whether

there is a material factual issue to be tried
Fo x Films Corp.

, not to resolve it.

Silman

Twentieth Century

3 NY2d 395

, 404 (1957). A

prima facie

showing ofa right to
Alvarez

judgment is required before summary judgment can be granted to a movant.

Prospect Hospital
Center
Royal 64 NY2d 851 (1985);

68 NY2d 320 (1986);

Winegrad

New York University Medical

Fox

Wyeth Laboratories

129 AD2d 611 (2d Dept. 1987);

Brooklyn Union Gas Co.

122 AD2d 132 (2d Dept. 1986).
prima facie

Once a movant has shown a

right to summary judgment , the burden

shifts to the opposing party to show that a factual dispute exists requiring a trial , and such

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facts presented by the opposing part
admissible form.

must be presented by

evidentiary proof in
Inc. 46 NY2d 1065

Friends of Animals, Inc.
insufficient.

Associated Fur Mfgrs. ,

(1979). Conclusory statements are
Dept. 1990),

Sofsky

Rosenberg,

164 AD2d 240 (I

aff'

76 NY2d 927 (1990);

Zuckerman

City of New York 49 NY2d 557
Werner

(1980); see Indig

Finkelstein

23 NY2d 728 (1968);

Nelkin 206 AD2d 422

(2d Dept. 1994);

Fink, Weinberger, Fredman
st Dept.
1981), app dism.

, Berman

Lowell

, Pc.

Petrides , 80
Aquatic

AD2d 781 (1

53 NY2d 1028 (1981);

JimIv app den.

Mar Corp.

Construction, Ltd.

195 AD2d 868 (3d Dept. 1993),

82 NY2d 600 (1993).

In performing its review of the record , the court must draw all reasonable
inferences in favor of the nonmoving
385 (2d Dept. 2003); Rizzo part. Nicklas

Tedlen Realty Corp.

305 AD2d

Lincoln Diner Corp.

215 AD2d 546 (2d Dept. 1995). It
Heller

should not attempt to resolve matters of credibilty.

Hicks Nurseries, Inc. , 198

AD2d 330 (2d Dept. 1993).

In the present case

, the plaintiff has made an adequate

prima facie

showing of the

defendant' s liability for goods sold and delivered. The itemized invoices sent from MSI

to Nash on September 4 , 2008 and September 13 , 2008 , as well as the credit memos

show the balance accumulated on the account. Furthermore , the demand for payment sent
from MSI to Nash on March 6 , 2009 , as well as the affidavit submitted by MSI Business
Manager Bhavesh Ghandi , further support MSI's contention of an unpaid balance.

However , the defendant has provided sufficient evidence precluding an award of
summary judgment. The
2009 and October 5 ,

letters sent from Nash to MSI , dated March 9 2009 , March 10

2009 , reveal an unresolved factual dispute as to the amount owed on

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the outstanding balance.

Created Gemstones

47 NY2d at 253;

Buffalo Newspress

AD3d at 969. Furthermore , e-mails between representatives ofMSI's New Jersey office
and Nash indicate an agreement as to the amount of credits applied to the account , which
are rejected by the plaintiff.

These additional terms supplement the additional agreement

providing further evidence of the existence of a triable issue of fact with regards to the
remaining account balance. UCC 9 2- 202(b).
Accordingly,

summary judgment must be

denied on the first cause of action.
The plaintiff has made a prima facie

showing of an account stated. However

the defendant' s response clearly indicates a dispute as to the remaining account balance

rendering summary judgment inapplicable. In its moving papers, the plaintiff presents an
invoice dated June 7 , 2009 for $18 948. 73.
This invoice ,

accompanied by allegations

that the defendant initially accepted it without objection
facie

, is sufficient to make a

prima

showing of an account stated.

However, the documents submitted by the defendant in its response indicate a

dispute. In its letter to Nash , dated March 6 , 2009 , prior to the final invoice , MSI
demanded the remaining account balance , contending that it was $35 782. 53.
The

defendant's response , dated March 9 2009 , disputed the stated balance , stating that it was
$23 382. 24.

JB.H

34 AD3d at 875.

Although the plaintiff, in its reply, attempts to

provide detail to show that its final invoice was correct , this information may not be
considered by the court in establishing the plaintiffs
judgment.

case for purposes of

summary
st Dept.

See Higgins-

Barber

Raffes International 45 AD3d 438 439 (1

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2007), citing Rift

Lenox Hil Hosp.

182 AD2d 560 , 562 (1

st Dept.

1992). (Holding that

details and information improperly raised for the first time in plaintiff s reply papers wil
not be considered by the motion court).

The Court finds that this proof does not resolve

the issue in plaintiffs favor in any event. As the plaintiffs moving papers thus reveal the
existence of a dispute regarding the correctness of the demanded balance , summary
judgment may not be awarded on an account stated.

JB.H 34 AD3d at 875.

Accordingly, summary judgment is denied on both causes of action.
This shall constitute the Decision and Order of this Court.

DATED: June 9 , 2010

Acting Supreme Court Justice

ENTERED
TO: Jeffrey A. Maidenbaum, Esq.
Maidenbaum & Associates, PLLC Attorneys for Plaintiff One Broadcast Plaza, Ste. 218 Merrick , NY 11566
Jay A. Press, P. Attorneys for Defendant 115 Broad Hollow Road, Ste. 350 Melvile , NY 11747
JUN 10 2010
NASSAU COUNTY COUNTY CLERK' S OFFICE



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