Walter Boss, Inc. v. Roncalli Freight Co.

Decision Date08 November 2018
Docket Number020146/2012
Citation62 Misc.3d 1203 (A),112 N.Y.S.3d 437 (Table)
Parties WALTER BOSS, INC., Pines Propane Corp., and Pines and Pools, Inc., Plaintiffs, v. RONCALLI FREIGHT COMPANY, INC. d/b/a Coastline Freight, Pines Commercial Properties, LLC, Pines Operations, LLC, and Pines Acquisition Holdings, LLC, as Successor in Interest by Merger to Pines Commercial Properties, LLC and Pines Operations, LLC, Defendants.
CourtNew York Supreme Court

MARSHALL M. STERN ESQ., JUDITH M. STERN, ESQ., Attorney for Plaintiffs, 17 Cardiff Court, Huntington Station, NY 11746

PATRICIA BYRNE BLAIR, ESQ., Attorney for Defendants, 9-B Montauk Highway, Bluepoint, NY 11715

James Hudson, J.

The matter at hand is a trial arising from a dispute between the Plaintiff and Defendant companies over the sums purportedly owed for services rendered to each other over a course of years. The non-jury trial took several days of testimony and the presentation of evidence. The Court would be remiss if it did not commend Ms. Donnenfeld, Ms. Blair and Mr. Stern for the able manner in which each of them presented arguments on behalf of their respective clients. Their written Briefs were thoughtful, scholarly and matched only by their skill in the Courtroom. Just as the learned Tribonian warned us that multitudo imperitorum perdit curiam* , the Court is ever mindful, indeed grateful, for the converse observation-excellent practitioners uphold the judicial forum.

Plaintiffs originally had five causes of action. The first claim was against Pines Commercial Properties LLC, Pines Operations LLC, Eric Von Kuersteiner and Anthony Roncalli for goods and services provided. The second sounded in breach of contract arising from a purported oral settlement of claims that Boss Inc. et al. had against the Defendants in return for $140,000.00 in shipping credits from Coastline Freight. The third claim was for damages resulting in increased costs to the Boss Parties as a result of procuring alternative shipping providers. The fourth claim was for an injunction preventing the Defendant Roncalli Freight d/b/a Coastline Freight from refusing to carry the Plaintiffs' goods and personnel and finally a fifth cause of action seeking damages for the alleged wrongful detention of Plaintiffs' goods. By the time of trial, however, all but the first and second causes of action against the Defendants were resolved. Mr. Von Kuersteiner and Mr. Roncalli are no longer being sued in their individual capacities. Plaintiff requests the Court grant judgment against the remaining Defendants for:

(1) breach of the settlement agreement in the amount of $140,000.00 less Coastline Credit received ($70,689.27 per Plaintiffs' Exhibit 33) for a total of $63,310.73 plus interest since July 3rd, 2012; or (2) In the event that the Court does not find the settlement agreement enforceable, "then for breach of contract for goods and services provided in the amount of $219,141.67 less offset for rent in the amount of $84,677.42 for a total of $134,464.25 plus interest since January 11, 2010."

The Defendants' counterclaims are for breach of contract, an account stated and for storage and service fees. Specifically, the Defendants argue that the sum of $125,418.27 is due to Roncalli Freight from Walter Boss Inc., and $86,620.19 due to Roncalli Freight from Pines Propane Corp. (Defendants' Exhibits D and C) for unpaid shipping, servicing and storage costs for a total of $214,038.46.

The salient testimony and evidence consisted of the following:

Mr. Walter Boss was the first witness called for the Plaintiffs. Upon observing his demeanor and listening to his answers, the Court found him to be in all respects a forthright and hence credible witness. The Court also heard the testimony of Ms. Karen Boss, and Mr. Steven Young. For the Defense, the witnesses consisted of Mr. Von Kuersteiner and Ms. Patricia Napolitano.

The Court will discuss and analyze the evidence initially as it applies to the claims of the Plaintiffs.

Mr. Boss is the sole owner of Walter Boss Inc., a construction company. He is also the sole owner of Pines Propane Corp. and Pines and Pools Inc. These shall be referred to collectively as "The Boss Parties." In order to operate his businesses, Mr. Boss required the transportation of sundry materials to Fire Island from Sayville. He utilized Tony's Barge Service and Coastline Freight (d/b/a of Roncalli Freight which acquired Coastline Freight Inc.).

There came a time in 2003 through 2004 that he started doing business with Mr. Eric Von Kuersteiner and Mr. Anthony Roncalli. They were the principals of the Defendants Pines Commercial Properties, LLC and Pines Operations, LLC (hereinafter referred to as the "EVK Parties"). One aspect of Mr. Boss' interaction with the Defendants involved work on a building known as "The Pavilion." Mr. Boss detailed that he performed a considerable amount of work for the Defendants. This was substantiated via a series of invoices (Plaintiffs' Exhibit 64) which totaled $219,141.67 between the years 2004 and 2010. Although Defense Counsel, during cross-examination skillfully attempted to cast doubt as to the veracity of the invoices, we find that they withstand scrutiny and substantiate Mr. Boss' testimony. During the direct testimony of Mr. Von Kuersteiner (Transcript 04/29/2016, pp.112-114), he attempted to challenge the bill under Invoice No.3762 (Plaintiffs' Exhibit 64). He claimed that this was for work performed on installing a swimming pool at the Hotel Ceil. The construction work had to be redone because it was in violation of FIPPOA Code. This was rectified by another company's services for completion and incurred a $7,600.00 cost to the Defendants. As described infra , the Court was less than persuaded by Mr. Von Kuersteiner's testimony.

Between 2004 and 2009 the Boss companies provided construction and maintenance services (as well as materials) for the Defendants and the realty they controlled. The properties were extensive, consisting of buildings located at 126 Beachill, 28 Fire Island Blvd., 428-9 Ocean, Aqua Gym, Bay Bar LLC, Pines Bamboo LLC, Blue Whale Restaurant LLC, Hotel Ceil LLC, Maximus Construction, EVK Pavilion LLC, Staff House, Strip Mall and Yacht Club, Pines Commercial Properties LLC, and Pines Operations LLC (Stipulated Facts, para 9). At the same time, The Boss Parties were using the services of Coastline Freight and occupying office space in an EVK Parties owned property, specifically a location owned by Rohan Holdings LLC, owned by Mr. Von Kuersteiner and Mr. Roncalli, beginning January 1st, 2005. The rent was originally $20,000.00 per year. The Landlord, Helm's Deep Holdings LLC, raised the rent to $60,000.00 per annum (Plaintiffs' Exhibit 44). The Plaintiffs refused to pay this at which point a notice to terminate was sent to Mr. Boss (Plaintiffs' Exhibits 45 and 46). When the written lease terminated on January 1st, 2006, the tenancy continued on a month to month basis (Stipulated Facts, para 11). With the passage of time, a misunderstanding arose between the Boss Parties and the EVK Parties as to the value of their respective services. The Boss Parties did not pay any rent between 2006 and 2010.

The Parties met January 11th, 2010. The Boss Parties prepared a letter and spread sheet detailing their claims for moneys owed for services and offset for rent. Mr. Boss claimed he was owed $248,468.76. It is undisputed that a formal written agreement was never entered into. Mr. Boss testified that it was his understanding that when the EVK Parties divested themselves of their holdings on Fire Island, his businesses would get paid. At the time the properties were sold, Mr. Von Kuersteiner stated that the Plaintiffs owed outstanding rent in the amount of $141,662.00 (Testimony 4/28/2016, p.89 line 12). Mr. Von Kuersteiner also testified, inter alia , that Plaintiffs owed the Defendants Pine Operations LLC, Pines Commercial Properties LLC and Pine Acquisition Holdings LLC a sum of $39,177.00 (4/28/2016 transcript, p.127 line 25 and p.133 line 20).

On September 29th, 2010, Mr. Boss and Mr. Von Kuersteiner met to discuss the dispute over the purported monies owed between the two factions. Mr. Von Kuersteiner stated the meeting was "to get a final number that we could agree on for what was allegedly due to the Walter Boss companies" (4/29/2016, Transcript p.91). By the time of the September 2010 meeting, the EVK Parties had sold all of their commercial properties (4/29/2016, Transcript p.91). This narrowed the possibility of interaction between the Parties to the services of Roncalli Freight vis-à-vis shipping for the Boss companies. It is undisputed that no settlement was reached at the September 2010 meeting. On the following day, Mr. Von Kuersteiner made a settlement offer in writing to the Plaintiffs (Plaintiffs' Exhibit 16). This offer, by its terms, was conveyed on behalf of Von Kuersteiner and Roncalli individually and on behalf of Pines Operations LLC and subsidiaries as well as Pines Commercial Properties and subsidiaries. Roncalli Freight was not mentioned in the document. Indeed, the sum due and owing Coastline was stated separately. Mr. Boss rejected this offer (Plaintiffs' Exhibit 18). He did, however pay the outstanding shipping charges for Coastline on January 5th, 2011 (Plaintiffs' Exhibits 19 and 20). From that point onward, the Boss entities could not use Coastline on a credit basis. They were required to pay cash for each shipment (Transcript 4/27/2016, p.3 and 4/28/2016 pp.11-12). The testimony of Ms. Patricia Napolitano shed little light on the amount of the disputed claims. Ms. Napolitano was the bookkeeper for Roncalli Freight. Additionally, she performed other bookkeeping duties for the EVK Parties at Mr. Von Kuersteiner's behest. Tasked with reconciling the accounts of Roncalli with the claims of the Boss Parties, she dutifully attempted same. In comparing the records, however:

"we could just never balance because

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