Eskay Diamonds LLC v. MGA Diamond Inc.

• Decision Date: 15 February 2013
• Docket Number: Index No. 114619/2010
• Citation: 2013 NY Slip Op 30342
• Parties: ESKAY DIAMONDS LLC, Plaintiff v. MGA DIAMOND INC. and GABRIEL ABRAMOV, Defendants
• Court: New York Supreme Court

2013 NY Slip Op 30342

ESKAY DIAMONDS LLC, Plaintiff
v.
MGA DIAMOND INC. and GABRIEL ABRAMOV, Defendants

Index No. 114619/2010

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

DATED: January 22, 2013
DATED: February 15, 2013

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Plaintiff sues defendants to recover the unpaid balance for diamonds plaintiff delivered to defendants. It moves for summary judgment on its claims for an account stated, breach of contract, conversion, and breach of guaranty. C.P.L.R. § 3212(b). For the reasons explained below, the court denies plaintiff's motion.

II. SUMMARY JUDGMENT STANDARDS

To obtain summary judgment on plaintiff's claims, plaintiff must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). If plaintiff satisfies this standard, the burden shifts to defendants to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues.

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Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating the evidence for plaintiff's motion, the court must construe the evidence in the light most favorable to defendants and accept their version of the facts as true. Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004).

III. PLAINTIFF'S CLAIMS

A. First Claim for an Account Stated

The key element of a prima facie account stated claim is transmission of an invoice to defendants, forming the predicate for their failure to object to the invoice within a reasonable time. Risk Mgm't Planning Group, Inc. v. Cabrini Medical Ctr., 63 A.D.3d 421 (1st Dep't 2009); RPI Professional Alternatives, Inc. v. Citigroup Global Mkts. Inc., 61 A.D.3d 618, 619 (1st Dep't 2009); Graubard Miller v. Nadler, 60 A.D.3d 499 (1st Dep't 2009); Rothstein & Hoffman Elec. Serv., Inc. v. Gong Park Realty Corp., 37 A.D.3d 206, 207 (1st Dep't 2007). See Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 A.D.3d 161, 162 (1st Dep't 2005). Failure to object constitutes an assent to pay the invoice. Risk Mgm't Planning Group, Inc. v. Cabrini Medical Ctr., 63 A.D.3d 421; Graubard Miller v. Nadler, 60 A.D.3d 499; Rothstein & Hoffman Elec. Serv., Inc. v. Gong Park Realty Corp., 37 A.D.3d at 207. See A.O Textile Inc. v. SEP Plus Inc., 57 A.D.3d 397 (1st Dep't 2008).

Snehal Kothari, plaintiff's officer, who attests simply that "Plaintiff issued invoices to Defendants reflecting amounts due

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and owing pursuant to the memorandum consignment agreements" does not indicate personal knowledge that the bills were mailed or otherwise transmitted to defendants or attest to any regular business mailing procedures that plaintiff followed. Aff. of Snehal Kothari ¶ 5. Nor does the record of invoices itself indicate they were mailed or otherwise transmitted to defendants. People v. Torres, 99 A.D.3d 429, 430 (1st Dep't 2012); Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 A.D.3d at 162. See California Suites, Inc. v. Russo Demolition Inc., 98 A.D.3d 144, 152 (1st Dep't 2012); Goldberg, Wepron & Ustin, LLP, 83 A.D.3d 554, 555 (1st Dep't 2011); Roth Law Firm, PLLC v. Sands, 82 A.D.3d 675, 676 (1st Dep't 2011). None of the invoices is addressed to Abramov. See Roth Law Firm, PLLC v. Sands, 82 A.D.3d at 676. While Kothari attests that defendants paid $10,723.00 of the amount billed, without evidence of when defendants made the payment in relation to the invoices, the payment may not have been against them, but may have preceded them or been prompted by other circumstances, such as service of this action. See LePatner & Assoc., LLP v. Horowitz, 81 A.D.3d 472 (1st Dep't 2011); Kramer Levin Naftalis & Frankel LLP v. Canal Jean Co.. Inc., 73 A.D.3d 604, 605 (1st Dep't 2010); RPI Professional Alternatives, Inc. v. Citigroup Global Markets Inc., 61 A.D.3d at 619. Absent admissible evidence either that plaintiff transmitted its bills to defendants or that it made any partial payment on the bills, plaintiff fails to establish a prima facie account stated claim. Risk Mgm't Planning Group,

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Inc. v. Cabrini Medical Ctr., 63 A.D.3d 421; RPI Professional Alternatives, Inc. v. Citigroup Global Markets Inc., 61 A.D.3d at 619; Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 A.D.3d at 162; Bartning v. Bartning, 16 A.D.3d 249, 250 (1st Dep't 2005).

B. Second Claim for Breach of Contract

To establish breach of a contract, plaintiff must show a contract, that plaintiff performed and defendants breached it, and that defendants' breach caused plaintiff to sustain damages. Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426 (1st Dep't 2010). See Tutora v. Siegel, 40 A.D.3d 227, 228 (1st Dep't 2007). Plaintiff must plead the specific terms of the agreement that defendants breached. Marino v. Vunk, 39 A.D.3d 339, 340 (1st Dep't 2007); Giant Group v. Arthur Andersen LLP, 2 A.D.3d 189, 190 (1st Dep't 2003); Kraus v. Visa Intl. Serv. Assn., 304 A.D.2d 408 (1st Dep't 2003).

Kothari supports plaintiff's claim for breach of contract against defendant MGA Diamond by attesting that plaintiff provided diamonds to defendants, according to three memoranda dated January 14, January 20, and February 20, 2010, which are addressed only to MGA Diamond. Each memorandum indicates the diamonds' cost, totaling $74,202.00, which is reflected in the invoices also addressed only to MGA Diamond. Kothari further attests...