Alexander, Winton & Assocs. v. DataFlow, Inc.

• Citation: 2022 NY Slip Op 33588 (U)
• Decision Date: 20 October 2022
• Docket Number: Index No. EFCA2022000396
• Court: United States State Supreme Court (New York)
• Parties: ALEXANDER, WINTON & ASSOCIATES, AS ASSIGNEE OF ESSE LOGISTICS INC., Plaintiff, v. DATAFLOW, INC. Defendant.

2022 NY Slip Op 33588(U)

ALEXANDER, WINTON & ASSOCIATES, AS ASSIGNEE OF ESSE LOGISTICS INC., Plaintiff, v. DATAFLOW, INC. Defendant.

Index No. EFCA2022000396

Supreme Court, Broome County

October 20, 2022

Unpublished Opinion

Counsel for Plaintiff: STEIN &STEIN, LLP By: Ari J Stein, Esq.

Counsel for Defendant: COUGHLIN &GERHART, LLP By: Alan J Pope, Esq.

DECISION AND ORDER

EUGENE D. FAUGHNAN, J.S.C.

This matter is before the Court to consider the motion of Plaintiff, Alexander Winton &Associates ("Alexander Winton"), as assignee of Esse Logistics, Inc. ("Esse"), for summary judgment; and the cross motion of Defendant, Dataflow, Inc. ("Dataflow") to dismiss the Complaint, pursuant to CPLR 3211 (a)(3) and (7). Oral argument was held on August 19,2022, at which time only Defendant availed itself of the opportunity to appear in person. The Court will consider Plaintiff's position based on its written submissions. After due deliberation, this constitutes the Court's Decision and Order.

BACKGROUND FACTS

Dataflow is a company that specializes in print and data management services. In June 2020, Dataflow entered into an agreement with FRC Logistics ("FRC") for FRC to serve as a broker for the transportation of pallets of acrylic sheets from Globe Con Freight, located in Rancho Domingues, California, to Broome County, NY, where Dataflow is located. FRC then entered into an agreement with Esse to transport the goods for an agreed upon price of $6,500. The complaint alleges that Esse delivered the goods but was not paid, and set forth causes of action for breach of contract and account stated. Plaintiff, Alexander Winton, claims to be the assignee of Esse, and has sued to recover the contract price for the delivery of the goods.

Dataflow served an Answer with affirmative defenses and counterclaims on April 7, 2022. The counterclaims allege that: neither the Plaintiff nor Esse are authorized to conduct business in New York and are, therefore, barred from maintaining this action; the shipment was seriously late resulting in damages to Dataflow; Esse intentionally and deceptively promised to make timely delivery which it knew it couldn't perform, entitling Dataflow to treble damages and attorney's fees under General Business Law § 349; and that Plaintiffs actions constitute a prima facie tort.

Plaintiff filed this motion for summary judgment on July 7, 2022, and included an affidavit of Tony Mangini, legal manager of Alexander Winton. Plaintiff argues that Dataflow was the consignee under the shipping contract and is jointly and severally liable for the shipping services such that Plaintiff could seek to recover from either FRC or Dataflow. The parties have not indicated if any steps were taken to recover from FRC.

Dataflow filed papers in opposition to Plaintiffs motion for summary judgment, and Dataflow also made a cross-motion for summary judgment. Dataflow contends that the Mangini affidavit is inadequate to support summary judgment because Mangini does not work for Esse and has no personal or first-hand knowledge of the underlying facts concerning the delivery of the goods and any agreement with respect thereto. Dataflow further contends that it has no liability because it made payment to FRC, its freight broker. Dataflow has no knowledge as to whether FRC made payment to Esse, or if there were any claims, disputes or defenses to any such payments. Dataflow also disputes it has joint and several liability with FRC. With respect to the cross-motion to dismiss the complaint, Dataflow argues that Plaintiff and Esse lack standing to bring this action because neither are authorized to conduct business in New York; and that there was no privity of contract between Defendant and Esse.

LEGAL DISCUSSION AND ANALYSIS

When seeking summary judgment, "the movant must establish its prima facie entitlement to judgment as a matter of law by presenting competent evidence that demonstrates the absence of any material issue of fact." Lacasse v Sorbello, 121 A.D.3d 1241, 1241 (3^rd Dept 2014) citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986) and Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985) (other citation omitted); see Amedure v. Standard Furniture Co., 125 A.D.2d 170 (3^rd Dept. 1987); Bulger v. Tri-Town Agency, Inc., 148 A.D.2d 44 (3^rd Dept. 1989), app dismissed 75 N.Y.2d 808 (1990). Such evidence must be tendered in admissible form. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065,1067-1068 (1979). Once this obligation is met, the burden shifts to the respondent to establish that a material issue of fact exists. Dugan v. Sprung, 280 A.D.2d 736 (3^rd Dept. 2001); Sheppard-Mobley v. King, 10 A.D.3d 70, 74 (2^nd Dept. 2004) affd as mod. 4 N.Y.3d 627 (2005); Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853. "When faced with a motion for summary judgment, a court's task is issue finding rather than issue determination (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395,404 [1957]) and it must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact." Boston v. Dunham, 274 A.D.2d 708, 709 (3^rd Dept. 2000); see, Boyce v. Vazquez, 249 A.D.2d 724, 726 (3^rd Dept. 1998). The motion "should be denied if any significant doubt exists as to whether a material factual issue is present or even if it is arguable that such an issue exists." Haner v. De Vito, 152 A.D.2d 896, 896 (3^rd Dept. 1989) (citation omitted); Lacasse v. Sorbello, 121 A.D.3d 1241; Asabor v. Archdiocese of N.Y., 102 A.D.3d 524 (1^st Dept. 2013). It "is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact." Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 505 (2012) (citation omitted).

'"The elements of a cause of action for breach of contract are (1) formation of a contract between plaintiff and defendant; (2) performance by plaintiff; (3) defendant's failure to perform; and (4) resulting damage." Clearmont Prop., LLC v. Eisner, 58 A.D.3d 1052,1055 (3^rd Dept. 2009), quoting Hecht v. Components Inti, Inc., 22 Mise 3d 360, 3645 (Sup. Ct. Nassau County 2008); Dee v. Rakower, 112 A.D.3d 204 (2^nd Dept. 2013). The second cause of action is for an account stated which 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.'" J.B.H., Inc. v. Godinez, 34 A.D.3d 873, 874 (3^rd Dept. 2006) quoting Jim-Mar Corp. v. Aquatic Constr., 195 A.D.2d 868, 869 (3^rd Dept. 1993).

In support of its motion, Plaintiff submitted Mangini's affidavit. An affidavit in support of a motion for summary judgment must be made by someone with personal knowledge of the underlying facts. See, Delosh v. Amyot, 186 A.D.3d 1793 (3^rd Dept. 2020); LaRusso v. Katz, 30 A.D.3d 240 (1^st Dept. 2006), see also David Graubart, Inc. v. Bank Leumi Trust Co., 48 N.Y.2d 554 (1979); CPLR 3212 (b). An affidavit without personal knowledge is of no probative value and cannot be considered on a motion for summary judgment. See, Dempsey v. Intercontinental Hotel Corp., 126 A.D.2d 477,479 (1^st Dept. 1987); GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557, 563. A person's review of records maintained in the normal course of business does not imbue the person with personal knowledge. JPMorgan Chase Bank, N.A. v. Grennan, 175 A.D.3d 1513 (2^nd Dept. 2019). Although Mangini stated that he was familiar with Plaintiffs business practices and records, he does not aver any personal knowledge of Ease's business practices, or the creation and execution of this delivery contract, or any breach of contract due to non-payment. Furthermore, there are no allegations to support an account stated between Esse and Dataflow, such as a prior business relationship between the two or periodic billing statements. See, e.g. Hubbell, Inc. v. Lazy Swan Golf &Country Club LLC, 187 A.D.3d 1448 (3^rd Dept. 2020). In fact, the evidence shows that Defendant has objected to this bill. Therefore, the Mangini affidavit itself is insufficient to support a claim for summary judgment for either breach of contract or account stated.

An affidavit not based on personal knowledge can, nevertheless serve as a vehicle for the submission of admissible documents (Zuckerman v. New York, 49 N.Y.2d 557), so the Court will also consider the Exhibits that were attached to the Mangini affidavit (i.e. a Rate Confirmation Sheet and a Bill of Lading). The Rate Confirmation sheet is on FRC stationery, and shows the carrier to be Esse, and lists FRC Logistics as a broker. The shipment is listed as going from Globe Con Freight to Dataflow. It also states that the carrier will be paid $6,500 when the Bill of Lading is received by FRC. A second Exhibit to Mangini's affidavit is the Bill of Lading, and that also appears to have FRC's logo at the top. The Bill of Lading identifies the Carrier as "On Time Transit, Inc." at the top of the form, but Esse is listed as the carrier at the bottom of the form. No explanation has been provided to the Court regarding the discrepancy on the carrier identification. The goods were to be shipped from Globe Con to Dataflow. The Bill of Lading provided to the Court is difficult to read, but appears to include a section that says "Bill Third Party Prepaid to" FRC Logistics. That suggests that the money was paid to FRC and that FRC should be billed for the delivery services. Dataflow contends that it paid Dataflow in advance.^[1] Never...