Opinion
Index No. 500252/2024 Motion Seq. 3
06-04-2024
SMART-FILL MANAGEMENT GROUP, INC., Plaintiff, v. PERSONALRX NYC LLC, Defendants,
Unpublished Opinion
PRESENT: HON. LEON RUCHELSMAN, JUDGE.
DECISION AND ORDER
HON. LEON RUCHELSMAN, JSC
The, plaintiff has moved pursuant to. CPLR §3212 seeking summary judgement, on the first, third and fourth causes of action of the complaint alleging breach of contract, account stated and replevin. The defendant has opposed the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes, the following determination.
The plaintiff is a group purchasing organization (GPO) that procures favorable prices for its members who are pharmacies. On November 1, 2023 the plaintiff and defendant and non-party ABDC entered into an agreement whereby the defendant would purchase pharmacy products from. ABDC each month in the amount of $.300,000.
According to the complaint, through December 13, 2023 the defendant owed $739,842.76 (see. Verified Complaint, ¶23 [NYSCEF Doc. No. 2]). The complaint alleges that as of that date the. money was due and owing and commenced this action.. The: plaintiff now moves seeking summary judgement the. defendant owes the amount stated. The plaintiff asserts there are no questions of fact that amount, is owed. The defendant opposes the motion arguing there are questions of fact which foreclose a summary determination- at this time.
Conclusions of Law
Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v. City of New York, 49 N.Y.S.2d 557, 427 N.Y.S.2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause of any injury, however where only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Marino v. Jamison, 189 A.D.3d 1021, 136 N.Y.S.3d 324 [2d Dept. 2021).
It is well settled that, to succeed upon, a claim of breach of contract the plaintiff must establish the existence of a contract, the plaintiff's performance, the defendant's breach and resulting damages fHarris v. Seward Park Housing Corp., 79 A.D.3d 425, 913 N.Y.S.2d 161 [1st Dept., 2010]). Further, as explained in Gianelli v. RE/MAX of New York, 144 A.D.3d 861, 41 N.Y.S.3d 273 [2d Dept. 2016], "a breach of contract cause Of action fails as a matter of law in the absence of any showing that a specific provision of the contract was breached" (id).
Paragraph 4 (b) of the Smart-Fill ABDC Member Agreement states, that “Member will repay Smart-Fill if Smart-Fill has paid ABDC on Member's behalf" (see. Agreement, ¶4 (b) [NYSCEF Doc. No. 42]). There is no dispute that Smart-Fill paid ABDC on. behalf of the defendant and that therefore the defendant owes the money to the plaintiff. The defendant argues the agreement is not clear when payments are due. However, the agreement's summary table states that payments are due "semi-monthly" (id). There is further no dispute, that “semi-monthly” means twice a month (see, Language Tips, New York State Bar Journal, by Gertrude Block [June 2012]). Thus, there can be no dispute the defendant failed to make any payments, and surely failed to make two payments in the month of November. Therefore, the defendant breached the agreement. Moreover, there is no evidence the plaintiff likewise breached the agreement. Further, Paragraph 9,6 of the agreement's exhibit states that "ABDC and Smart-Fill will recover from Member all costs they incur,, including reasonable attorneys fees, in connection with enforcing their rights under this Agreement" (see, Exhibit to Agreement, ¶ 9.6 [NYSCEF Doc. No. 42]). While the question of reasonable attorney's fees may be pursued there are no questions of fact the defendant breached the. agreement by failing to make any payments and that the; plaintiff is .entitled'to attorney's fees.
Next, an account stated "is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them" (see, Episcopal Health Services, Inc. v. Pom. Recoveries, Inc., 138 A.D.3d 917, 31 N.Y.S.3d 113 [2d Dept., 2016]). A cause of action for account stated presents "an alternative theory of liability to recover the same damages allegedly sustained as a result of the breach of contract" (A. Moritilli Plumbing & Heating Corp., 90 A.D.3d 961, 935 N.Y.S.2d 647 [2d Dept., 2011]). The court has already granted the motion seeking summary judgement on a breach of contract claim. Thus, there is no basis for a duplicative claim, for account stated. Therefore, the motion, seeking summary judgement oh, this cause of action is denied.
Lastly, to establish a claim for replevin “a party must show (1.) that it has a superior possessory right to the chattel, and (2) that it made a demand for possession of the chattel from the. defendant" (see, Douglas v. Harry N. Abrams Inc., 2018 WL 1406616 [S.D.N.Y. 2018]). In this case replevin is sought concerning the goods delivered. There has been no substantive opposition raising any questions of fact in this regard.
Therefore, the motion seeking summary judgement on the replevin cause of action is granted.
Thus, the motion seeking summary judgement on the breach of contract claim and the replevin claim is granted. The precise amount of attorney's fees to which the plaintiff is entitled shall be decided at a hearing before a judicial hearing officer. The parties will be- notified of the. date and time., of such hearing.
So ordered.