Livingston Farms, LLC v. Klein's Kill Fruit Farms Corp.

Decision Date19 October 2010
Docket NumberMont. Seq. No.: 06,No.: 9013/08,Mont. Seq. No.: 05,: 9013/08
Citation2010 NY Slip Op 33018
CourtNew York Supreme Court
PartiesLIVINGSTON FARMS, LLC,Plaintiff, v. KLEIN'S KILL FRUIT FARMS CORP., A. BARTOLOTTA & SONS and RUSS BARTOLOTTA,Defendants.

SHORT FORM ORDER

PRESENT: HON. DENISE L. SHER

Acting Supreme Court Justice

TRIAL/IAS PART 32

NASSAU COUNTY

The following papers have been read on these motions:

Papers Numbered

Notice of Motion. Affirmation and Exhibits and Memorandum of Law.....1

Notice of Cross-Motion. Affidavit and Exhibits and Memorandum of Law.....2

Reply Affirmation. Affidavit and Exhibits and Memorandum of Law.....3

Upon the foregoing papers, it is ordered that the motions are decided as follows:

Motion (Seq. No. 5) by the attorneys for the plaintiff for an order granting plaintiff judgment against each of the defendants, jointly and severally, upon their Verified Accounting in the amount of $97,633.03, together with pre-judgment interest at the statutory rate from December 21, 2007; and cross-motion (Seq. No. 6) by the attorneys for the defendants for an order approving defendants' accounting as attached to defendants' cross-motion papers and plaintiffs motion papers, as amended, and adjudging that plaintiff has failed to prove it sustained any damages in this action are both denied.

Whether the apples were "golden" fit to be sold as whole apples on the marketplace, asalleged by the plaintiff, or of such inferior quality, as alleged by the defendants that they were only suitable for being pressed into apple juice, is the issue at the core of this case, and can only be resolved after a full evidentiary trial.

The plaintiff, Livingston Farms, LLC, is the owner of real property containing an apple orchard in Columbia County, New York with a principal place of business at 333 South Service Road, Jericho, Nassau County, New York. Defendant Klein's Kill Fruit Farms Corp. is a licensed broker who negotiates the sale to third-party buyers of apples grown by farmers in the Hudson Valley. Defendant Russell C. Bartolotta is the general manager of Klein's Kill Fruit Farms Corp.

On or about August 2007, the plaintiff and defendants entered into an oral agreement wherein the plaintiff retained the defendants to pick and market the apples grown on plaintiffs apple orchards in Columbia County. There is no dispute that plaintiff retained defendants to pick, store, grade, pack, transport and sell plaintiffs apple crop to customers. There is little else that the parties agree to at this stage of the litigation. For example, the parties cannot even agree on the number of bins of apples that were sold.

The plaintiff alleged that the defendant sold the greater bulk of the apples (90%) for juice, at a significantly lower price than had they been sold in the fresh market as whole apples.

Judge Martin signed an Order and Interlocutory Judgment dated September 4, 2009 directing the defendants to account to the plaintiff:

regarding all aspects of the defendants' inspection, receipt, storage, handling and disposition of the plaintiff's apples, including but not limited to the gross proceeds of the sale of the apples and all deductions taken by defendants from such gross proceeds.

The judgment directed the accounting to include:

any and all documents and information in the possession or under the control of the defendants, or which it is within the power of the defendants to obtain, which may be relevant to the defendants' inspection, receipt, storage, handling and disposition of the plaintiffs apples, including but not limited to the gross proceeds of the sale of the apples, as well as all deductions taken by defendants from such gross proceeds.

The judgment also granted any of the parties leave to apply to the Court for "such other or further order or judgment as the parties may be advised."

On November 19, 2009, defendants served their accounting. As set forth in the accounting, the total gross sales of plaintiff s crop were $14,913.00, the total deductions for expenses were $6,826.03, and the total amount paid to the plaintiff was the sum of $8,086.97.

Plaintiff argues that the apples had a market value of $105,720 on the fresh market. Reducing the amount by $8,086.97 already paid by the defendants, yields an amount of $97,633.03, for which plaintiffs seek a judgment. The defendants have cross-moved for an order approving defendants accounting showing an amount due the seller of $7,178.16 and dismissal of the complaint. (Since the defendants allege they erroneously paid the plaintiff $8,086.97, there is nothing due and owing.)

Neither counsel assists the Court with a citation to any New York Statute such as the CPLR pursuant to which relief is sought. Plaintiff appears to be moving pursuant to CPLR § 3212 for an award of summary judgment in the amount of $97,633.03. Defendants appear to be moving pursuant to CPLR § 3212 for an award of summary judgment confirming the accounting in the amount of $7,178.16. The Court will treat both as motions for summary judgment pursuant to CPLR § 3212.

It is well settled that summary judgment is a drastic remedy which should not be granted where there is any doubt about the existence of a triable issue of fact. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 A.D.2d 660, 528 N.Y.S.2d 1020 (2d Dept. 1988). It is nevertheless an appropriate tool to weed out meritless claims. Lewis v. Desmond, 187 A.D.2d 797, 589 N.Y.S.2d 678 (3d Dept. 1992); Gray v. Bankers Trust Co. of Albany, N.A., 82 A.D.2d 168, 442 N.Y.S.2d 610 (3d Dept. 1981). Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor (CPLR § 3212(b)), which may include deposition transcripts and other proof annexed to an attorney's affirmation. Olan v. Farrell Lines Inc., 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985). Absent a sufficient showing, the court should deny the motion, irrespective of the strength of the opposing papers. Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985).

If a sufficient prima facie showing is made, however, the burden then shifts to the nonmoving party. To defeat a motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR § 3212(b). See also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965. 498 N.Y.S.2d 786 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. See Mgrditchian v. Donato, 141 A.D.2d 513, 529 N.Y.S.2d 134 (2d Dept. 1988). Conclusory allegations are insufficient (Zuckerman v. City of New York, supra), and the parties must do more than merely parrot the language of the pleadings. There must be evidentiary proof in support of the allegations. See Fleet Credit Corp. v. Harvey Hutter & Co., Inc., 207 A.D.2d 380, 615 N.Y.S.2d 702 (2d Dept. 1994); Toth v. Carver Street Associates, 191 A.D.2d 631, 595 N.Y.S.2d 236 (2d Dept. 1993).

The role of the court in deciding a motion for summary judgment is not to resolve issuesof fact or to determine matters of credibility, but simply to determine whether such issues of fact requiring a trial exist. See Dyckman v. Barrett, 187 A.D.2d 553, 590 N.Y.S.2d 224 (2d Dept. 1992); Barr v. Albany County, 50 N.Y.2d 247, 428 N.Y.S.2d 665 (1980); James v. Albank, 307 A.D.2d 1024, 763 N.Y.S.2d 838 (2d Dept. 2003); Heller v. Hicks Nurseries, Inc., 198 A.D.2d 330, 605 N.Y.S.2d 888 (2d Dept. 1993).

The Court need not, however, ignore the fact that an allegation is patently false or that an issue sought to be raised is merely feigned. See Village Bank v. Wild Oaks Holding, Inc., 196 A.D.2d 812, 601 N.Y.S.2d 940 (2d Dept. 1993); Barclays Bank of New York, N.A. v. Sokol, 128 A.D.2d 492, 512 N.Y.S.2d 419 (2d Dept. 1987).

Affidavits by persons allegedly familiar with the facts (Russell C. Bartolotta, General Manager of ...

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