Pac. W., Inc. v. E & A Restoration, Inc.
| Decision Date | 11 December 2019 |
| Docket Number | 2017-02564,Index No. 604985/16 |
| Citation | 178 A.D.3d 834,111 N.Y.S.3d 906 (Mem) |
| Parties | PACIFIC WESTERN, INC., Appellant, v. E & A RESTORATION, INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
178 A.D.3d 834
111 N.Y.S.3d 906 (Mem)
PACIFIC WESTERN, INC., Appellant,
v.
E & A RESTORATION, INC., Respondent.
2017-02564
Index No. 604985/16
Supreme Court, Appellate Division, Second Department, New York.
Submitted - October 7, 2019
December 11, 2019
Silverberg P.C., Central Islip, N.Y. (Karl Silverberg of counsel), for appellant.
Forchelli Deegan Terrana LLP, Uniondale, N.Y. (John M. Comiskey and Joseph P. Asselta of counsel), for respondent.
MARK C. DILLON, J.P. JEFFREY A. COHEN, ROBERT J. MILLER, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to recover damages for consignee liability for freight charges, the plaintiff appeals from an order of the Supreme Court, Nassau County (Anna Anzalone, J.), entered February 28, 2017. The order granted the defendant's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
The defendant contracted with the United States Department of the Interior to perform certain improvements at the Sagamore Hill National Historic Site in Oyster Bay (hereinafter the project site), which included the construction of pedestrian pathways. On or about August 6, 2013, the defendant entered into a contract with Soil Stabilization Products Company, Inc. (hereinafter SSPC), a California-based company, to manufacture pavement mix. The contract stated, in pertinent part, that "[p]rice includes shipment of mix in super bags from mixing plant to project site." By check dated July 29, 2013, the defendant pre-paid SSPC the entire balance of $56,366.92. SSPC thereafter contracted with the plaintiff to transport the pavement mix from California to the project site and arranged for delivery to be made in two separate shipments. The first shipment, which is the subject of this litigation, was delivered to the project site by two separate trucks. The first delivery was made by Code Express, Inc., on September 4, 2013, and the second delivery was made by Intercity Trucking, Inc., on September 6, 2013. Although the defendant accepted both deliveries, SSPC refused to pay the plaintiff, when requested, for the shipping costs...
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