Sambee Corp. v. Moustafa
| Decision Date | 27 June 1995 |
| Citation | 216 A.D.2d 196,628 N.Y.S.2d 664 |
| Parties | SAMBEE CORPORATION, LTD., Plaintiff-Appellant, v. Mohamed MOUSTAFA, Doing Business as D.M. Factory, Defendant-Respondent, and E.S. Originals, Inc., Garnishee. |
| Court | New York Supreme Court — Appellate Division |
B.A. Ralph, for plaintiff-appellant.
Shapiro & Shapiro, for defendant-respondent.
Before ROSENBERGER, J.P., and ELLERIN, ROSS, WILLIAMS and TOM, JJ.
Order, Supreme Court, New York County (Walter Schackman, J.), entered on or about April 26, 1994, which granted the defendant's motion to dismiss the plaintiff's complaint on the ground of forum non conveniens, unanimously reversed, on the law and the facts, and the complaint is reinstated without costs.
The defendant, Mohamed Moustafa, is an Egyptian garment manufacturing corporation with its principal place of business in Alexandria, Egypt. Plaintiff, Sambee Corporation, Ltd., is a South Korean company not authorized to do business in New York, with its principal place of business located in Seoul, Korea. The action which underlies this appeal involves a business arrangement between the plaintiff, defendant and certain purchasers of the garments manufactured by the defendant Mohamed Moustafa located in the United States, such as E.S. Originals, a New York Corporation. There is no written agreement in the record and no indication that a choice of law has been made by the parties to govern disputes between them. The record as developed so far demonstrates that Sambee Corporation acted as the inspection agent for E.S. Originals, and would inspect and approve shipment of garments manufactured by Mohamed Moustafa before the goods were shipped by the defendant directly to E.S. Originals. E.S. Originals would be invoiced directly by the defendant. Sambee Corp. would collect on the invoice, deduct its commission and remit the balance to the defendant.
The underlying action was the result of the shipment of allegedly defective nonconforming goods by the defendant to Sambee's customers. E.S. Originals, one of those customers, asserted claims against Sambee Corp. amounting to $450,736.38 based upon the defective goods manufactured and sent by the defendant. Sambee Corp. alleges that it was unable to discover the defects in the garments before shipment and ultimately had to credit E.S. Originals for over $450,000. Sambee Corp. commenced the action underlying this appeal against Mohamed Moustafa claiming that, due to its having to issue credits to E.S. Originals as well as other vendors, it lost $595,335.38.
Prior to the commencement of the action by Sambee Corp. against Mohamed Moustafa, defendant Mohamed Moustafa commenced an action against E.S. Originals for goods sold and delivered seeking $108,000 in damages. That action was settled for $90,000 and the litigation discontinued with prejudice in late 1993. It is noted in the order appealed herein, that the plaintiff Sambee Corp. sought and obtained an order of attachment against the $90,000 debt owed to Mohamed Moustafa by virtue of the settlement, as it constituted an asset of the defendant company. The trial court noted also that, in its prior order granting the attachment,...
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