LEP Transport Inc. v. Renaissance Intern. Textiles, Ltd.

• Citation: 131 A.D.2d 374,517 N.Y.S.2d 8
• Parties: LEP TRANSPORT, INC., Plaintiff-Appellant-Respondent, v. RENAISSANCE INTERNATIONAL TEXTILES, LTD., Defendant-Respondent-Appellant, and Sidney S. Allen, Additional Defendant-Appellant-Respondent on Counterclaims.
• Decision Date: 25 June 1987
• Court: New York Supreme Court — Appellate Division

Page 8

517 N.Y.S.2d 8

131 A.D.2d 374

LEP TRANSPORT, INC., Plaintiff-Appellant-Respondent, v. RENAISSANCE INTERNATIONAL TEXTILES, LTD.,

Defendant-Respondent-Appellant,

and

Sidney S. Allen, Additional Defendant-Appellant-Respondent

on Counterclaims.

Supreme Court, Appellate Division,

First Department.

June 25, 1987.

S.S. Allen, New York City, for plaintiff-appellant-respondent.

R.G. Riopelle, D.A. Derfner, J.H. Beers, New York City, for defendant-respondent-appellant.

S. Postel, New York City, for additional defendant-appellant-respondent on counterclaims.

Before KUPFERMAN, J.P., and ASCH, MILONAS, and ELLERIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (Irving Kirschenbaum, J.), entered on or about July 29, 1986, which, inter alia, granted the motions by plaintiff Lep Transport, Inc. and additional defendant Sidney S. Allen to dismiss the first, third and fourth counterclaims contained in the amended answer of defendant Renaissance International Textiles, Ltd., is unanimously modified on the law to the extent of also granting the motions to dismiss the second counterclaim and dismissing the complaint against additional defendant Allen, and otherwise affirmed, with costs to Allen by defendant Renaissance International Textile, Ltd.

This is an action by plaintiff Lep Transport, Inc., a freight forwarder-customs broker to recover the sum of $32,269.96, allegedly owed by its client, defendant Renaissance International Textiles, Ltd., as advances for certain air freight charges and customs duties. In that connection, it appears that in the course of the business dealings between the parties, plaintiff experienced increasing difficulties in obtaining payment and ultimately refused to advance any further sums of money, except as to imports already cleared through customs and for which Lep was liable for duty. When Renaissance failed to remit payment for its accrued indebtedness, the instant lawsuit ensued. Thereafter, by letter dated March 4, 1985, but postmarked on March 6, 1985, the date of the service of the summons and complaint, Renaissance's president, D. Charles Schlang, agreed to pay $13,371.16 by the week of March 18th and the balance by the end of March.

No payment was forthcoming, and plaintiff and its attorney, Sidney S. Allen, then purportedly attempted unsuccessfully to settle the matter by telephone. On March 25, 1985, the day before the time to answer the complaint was to expire, Renaissance's counsel, Donald A. Derfner, finally contacted Allen. According to plaintiff, Derfner stated that Renaissance promised to meet its obligations to Lep, wanting only to "memorialize" the arrangement in writing. Renaissance, on the other hand, claims that the parties had agreed to resolve the dispute without recourse to litigation, with Renaissance to pay $13,471.16 upon execution of a settlement agreement and the balance to follow upon verification of Lep's claims. At any rate, pursuant to a letter dated March 25, 1985, Derfner declared that his client would pay the sum of $13,471.16 immediately, with the balance to be paid on or before April 1, 1985, in exchange for which the action would be withdrawn with prejudice and Renaissance would be released from all claims arising out of the allegations contained in the complaint.

Renaissance contends that Allen had accepted all of the terms outlined in the letter of March 25th. Allen denies this, asserting that while Derfner's letter did confirm the promise to pay, it contained statements which were never discussed or agreed to. One of these disputed statements is the following: "Under the...