Collection v. Cabinets

• Decision Date: 01 July 2013
• Docket Number: No. 10 Civ. 5715(DF).,10 Civ. 5715(DF).
• Citation: 952 F.Supp.2d 542
• Court: U.S. District Court — Southern District of New York
• Parties: KASPER GLOBAL COLLECTION & BROKERS, INC. as Nominee for Atlas Meble Kuchenne Sp.z o.o., Plaintiff, v. GLOBAL CABINETS & FURNITURE MANUFACTURERS INC., Denton Stoneworks Inc., Boguslaw Kaczor and Artur Bobko Individually and d/b/a Atlas Kitchens Inc., Affordable Kitchens by Atlas, World of Interiors, LLC and DKF Designs LLC, Defendants.

952 F.Supp.2d 542

KASPER GLOBAL COLLECTION & BROKERS, INC. as Nominee for Atlas Meble Kuchenne Sp.z o.o., Plaintiff,

v.GLOBAL CABINETS & FURNITURE MANUFACTURERS INC., Denton Stoneworks Inc., Boguslaw Kaczor and Artur Bobko Individually and d/b/a Atlas Kitchens Inc., Affordable Kitchens by Atlas, World of Interiors, LLC and DKF Designs LLC, Defendants.

No. 10 Civ. 5715(DF).

United States District Court, S.D. New York.

July 1, 2013.

Robert S. Sikorski, Wojtek Scott Krol, Busson and Sikorski, New York, NY, for Plaintiff.

Aleksandr Altshuler, Segal Gebski PLLC, Marius Segal–Gebski, Law Office of Segal–Gebski, New York, NY, Jeremy R. Kalina, Tunstead & Schechter, Jericho, NY, for Defendants.

MEMORANDUM AND ORDER

DEBRA FREEMAN, United States Magistrate Judge.

In this contract case, which is before this Court on consent pursuant to 28 U.S.C. § 636(c), plaintiff Kasper Global Collection & Brokers, Inc. (“Plaintiff”) ¹ has moved for summary judgment on its claims of breach of contract, account stated, and goods sold and received, or, in the alternative, partial summary judgment on certain of those claims. (Dkt. 48.) Defendants Global Cabinets & Furniture Manufacturers Inc. (“Global”), Denton Stoneworks Inc. (“Denton”), Boguslaw Kaczor (“Kaczor”), Artur Bobko (“Bobko”), Atlas Kitchens Inc. (“Atlas Kitchens”), and Affordable Kitchens by Atlas (“Affordable Kitchens”) (collectively, “Defendants”) ² have cross-moved for dismissal of the entire Complaint or, in the alternative, dismissal of all claims against certain defendants or summary judgment in favor of all Defendants. (Dkt. 55.)

In support of their cross-motion, Defendants argue, inter alia, that the Court must dismiss Plaintiff's Complaint in its entirety because all of Plaintiff's claims are subject to an enforceable forum-selection clause, which requires the parties to litigatethis case, if at all, in a Polish court, under Polish law. ( See Defendants' Memorandum in Support of Cross–Motion to Dismiss or for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment, dated Sept. 21, 2012 (“Def. Mem.”) (Dkt. 57), at 1.)

For the reasons that follow, the Court agrees that the forum-selection clause to which Defendants refer is enforceable, but, on the record presented, finds that it may be enforced only as to Plaintiff's claims against Global and Kaczor, and as to Plaintiff's claims against Bobko based on any Global transactions. The Court therefore grants Defendants' cross-motion (Dkt. 55) for summary judgment in part, and dismisses all of Plaintiff's claims against Global and Kaczor, as well as any of Plaintiff's claims against Bobko that are based on the Global transactions. Defendant's cross-motion is otherwise denied.

As to Plaintiff's motion for summary judgment (or partial summary judgment) on claims asserted against the remaining defendants—Affordable Kitchens, Atlas Kitchens, Denton, and Bobko (based on the conduct of Affordable Kitchens and Atlas Kitchens)—the Court concludes that Plaintiff has not demonstrated the absence of material issues of fact. Accordingly, that motion (Dkt. 48) is denied, as is Plaintiff's motion to dismiss Bobko's counterclaim.

BACKGROUND

A. Factual Background³

1. Atlas Meble's Business Arrangements With Affordable Kitchens and Atlas Kitchens

Atlas Meble is a Polish corporation that manufactures custom-made furniture in Poland, with its chief product consisting of custom kitchens ( i.e., suites of kitchen cabinets, counters, and the like). (Pl. 56.1 Stmt. ¶ 1.) The company does not sell to individual consumers; rather, it partners with autonomous retailers in given markets to sell its furniture in those markets. (Id. ¶ 20.)

In 2005, Atlas Meble began doing business with defendant Affordable Kitchens, a limited liability company that, at that time, operated a retail store in New Jersey. (Defendants' Statement of Material Facts Pursuant to Local Rule 56.1, dated Sept. 21, 2012 (“Def. 56.1 Stmt.”) (Dkt. 61), ¶¶ 7, 9.) Defendant Bobko and his partner, Jacek Malkanski, were the sole principals of Affordable Kitchens. (Declaration of W. Scott Krol, Esq., dated Aug. 31, 2011 (“Krol Decl.”) (Dkt. 50), Ex. B (Transcript of deposition of Artur Bobko, conducted Nov. 23, 2011), at 16:10–13, 17:14–16).

In 2007, Bobko dissolved the New–Jersey–based Affordable Kitchens and—purportedly at the request of the then-president of Atlas Meble, Tadeusz Nowicki (“Nowicki”)—created a New York business in its stead (Atlas Kitchens), which opened a store in Yonkers, New York. ( See Def. 56.1 Stmt. ¶ 17; Krol Decl., Ex. B, at 6:7–8, 8:15–17, 16:6–22, 17:3–10; Affidavit of Artur Bobko, sworn to Feb. 10, 2012 (“Bobko Aff.”) (Dkt. 59), ¶ 6.) The parties dispute whether, prior to its dissolution, Affordable Kitchens fully paid for its orders from Atlas Meble. According to Bobko, at the time when it was agreed that Affordable Kitchens should cease doing business, Affordable Kitchens paid all outstanding obligations to Plaintiff by wire transfer. (Bobko Aff. ¶ 6; Def. 56.1 Stmt. ¶ 16.) Plaintiff, however, has submitted numerous invoices and shipping records ( see generally Krol Decl., Ex. G (Invoices and Shipping Records) ⁴), and asserts, based on those records, that Affordable Kitchens still owes a balance of $29,526.74 for purchases made in 2006. ( See Pl. 56.1 Stmt. ¶ 23.) Neither party submits documentary evidence of payments made by Affordable Kitchens.

As for the new Atlas Kitchens business, Bobko contends that it was not only created at the specific request of Atlas Meble, which wanted a presence closer to New York City (Def. 56.1 Stmt. ¶ 17; Bobko Aff. ¶ 6), but that it was formed based on Atlas Meble's express agreement to provide the new store with a showroom, samples, catalogs, training, and employees in order to conduct its business in New York (Def. 56.1 Stmt. ¶ 28; see also Bobko Aff. ¶ 8). According to Bobko, while this was not memorialized in a written contract, he had a “verbal agreement” with Nowicki to this effect. (Krol Decl., Ex. B, at 9:24–10:2.) Defendants assert that, in reliance on this agreement, Bobko expended sums in excess of $100,000 to establish Atlas Kitchens, but, other than providing some showroom material (Def. 56.1 Stmt. ¶ 28) and catalogs (Bobko Aff. ¶ 8), Plaintiff failed to assist Atlas Kitchens in any way in the establishment and operation of its business (Def. 56.1 Stmt. ¶ 28).

Plaintiff, meanwhile, claims that Atlas Kitchen owes it payment on furniture orders. (Pl. 56.1 Stmt. ¶ 24.) It is undisputed that Atlas Kitchens received furniture from Atlas Meble ( id. ¶ 29) and sold some of Atlas Meble's furniture to retail customers (Krol Decl., Ex. B, at 44:7–10). It is also undisputed that Bobko still has some kitchen furniture in his possession (Pl. 56.1 Stmt. ¶ 34), although Bobko testified that this furniture was display furniture that Atlas Meble provided as part of its alleged agreement to do so (Krol Decl., Ex. B, at 13:7–14:7). Plaintiff concedes that Atlas Kitchens paid some of its invoices, but contends that Atlas Kitchens still owes a balance of $23,634.76 for purchases of furniture from Atlas Meble. ( See Pl. 56.1 Stmt. ¶ 24.)

While Bobko acknowledges that Atlas Kitchens did not make payment on all of the invoices it received (Krol Decl., Ex. B, at 44:7–15, 45:6–14), Defendants allege that there were ongoing disputes with regard to invoices that Plaintiff presented to Atlas Kitchens, that Atlas Kitchens repeatedly notified Plaintiff of the discrepancies and errors in such statements, that Plaintiff authorized credits for untimely orders, and that Atlas Kitchens made all payments reasonably due (Def. 56.1 Stmt. ¶ 21; Bobko Aff. ¶¶ 9–11). Bobko also contends that orders were shipped by Atlas Meble on an extremely delayed basis, that customers of Atlas Kitchens could not wait six months for cabinets, that orders were cancelled, and that business was lost. (Bobko Aff. ¶ 11.) Bobko also states that, because of the delayed orders, he had to lend Atlas Kitchens money to pay customers who could not finish construction work on their kitchens. ( Id. ¶ 9.) In connection with their payment dispute, Plaintiff submits invoices and shipping records for furniture that it claims to have sent to Atlas Kitchens. (Krol Decl., Ex. G.) ⁵ Defendants, on the other hand, submit email correspondence between Atlas Kitchens and Atlas Meble regarding delayed shipments and nonconforming products. ( See generally Def. Mem., Ex. A–1 (Translated email correspondence) (Dkt. 62).⁶) Bobko asserts that credits for some of these orders were agreed upon by Nowicki, on behalf of Atlas Meble, and Bobko, on behalf of Atlas Kitchens. (Bobko Aff. ¶ 11.) Bobko also asserts that there was an express agreement that a set-off was to be made for any balance owed by Atlas Kitchens for amounts that Bobko expended in establishing Atlas Kitchens. ( Id.)

According to Bobko, Atlas Kitchens went out of business after only a few months of operation because of Atlas Meble's untimely and inadequate shipments and because of the failure of Atlas Meble, in general, to “perform its part in connection with the operation of such business.” ( Id. ¶¶ 8, 10; see also Krol Decl., Ex. B, at 9:6–7 (noting that Atlas Kitchens went out of business in 2008).) Bobko states that, after Atlas Kitchens went out of business, he received an invoice and immediately informed Nowicki and Tomasz Glodz (“Glodz”), an Atlas Meble sales representative, that the invoice was totally incorrect, because it related to orders that were either delivered with nonconforming goods or that were delivered months late and could not be used by the customers who placed the orders. (Bobko Aff. ¶ 10.) Bobko also notes that Nowicki lost his job soon after Atlas Kitchens went out of business, and (although this is not entirely clear), Bobko seems to suggest that, after that point, he started receiving additional invoices in connection with shipments that were either defective or...