Opinion
13596 Index No. 652017/18 Case No. 2020-02896
04-15-2021
EDELMAN ARTS, INC., Plaintiff–Appellant–Respondent, v. NEW YORK ART WORLD, LLC doing business as Lio Malca, Defendant–Respondent–Appellant.
Franzino & Scher, LLC, New York (Frank J. Franzino, Jr. of counsel), for appellant-respondent. Olsoff Cahill Cossu LLP, Ellenville (Paul Cossu of counsel), for respondent-appellant.
Franzino & Scher, LLC, New York (Frank J. Franzino, Jr. of counsel), for appellant-respondent.
Olsoff Cahill Cossu LLP, Ellenville (Paul Cossu of counsel), for respondent-appellant.
Renwick, J.P., Gische, Moulton, Mendez, JJ.
Order, Supreme Court, New York County (Joel M. Cohen, J.), entered December 9, 2019, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment on its counterclaim for breach of contract, denied plaintiff's motion for summary judgment, and awarded defendant prejudgment interest from the date of commencement of the action, unanimously affirmed, without costs.
Defendant established prima facie that plaintiff breached the parties’ contract by showing that plaintiff failed to pay for art that it purchased from defendant, despite having agreed to the invoice for payment on the date that it received it (see e.g. McFadyen Consulting Group, Inc. v. Puritan's Pride, Inc., 87 A.D.3d 620, 621, 928 N.Y.S.2d 87 [2d Dept. 2011] ; George S. May Intl. Co. v. Thirsty Moose, Inc., 19 A.D.3d 721, 722, 796 N.Y.S.2d 196 [3d Dept. 2005] ). Plaintiff failed to raise an issue of fact as to its claimed status as the agent of a disclosed principal (see Safety Envtl., Inc. v. Barberry Rose Mgt. Co., Inc., 94 A.D.3d 969, 942 N.Y.S.2d 200 [2d Dept. 2012] ). The record demonstrates that plaintiff sought to realize a profit on the resale of the artwork it had agreed to purchase from defendant. There is no support in the record for plaintiff's argument that it was given instructions as agent to "resell the artwork to the principal." Moreover, even if plaintiff had acted as an agent, it should still be held liable, because the record shows that it undertook the responsibility of paying the purchase price to defendant (see Weidman v. Klot, 11 A.D.2d 641, 201 N.Y.S.2d 476 [1st Dept. 1960], lv denied 8 N.Y.2d 710, 208 N.Y.S.2d 1026, 170 N.E.2d 834 [1960] ; see also Air Tiger Exp. [USA] Inc. v. Farrell Forwarding Corp., 203 A.D.2d 500, 501, 611 N.Y.S.2d 244 [2d Dept. 1994], lv denied 84 N.Y.2d 806, 621 N.Y.S.2d 515, 645 N.E.2d 1215 [1994] ).
Plaintiff had no right to cancel the agreement unilaterally, because it did not object to the invoice within 10 days of receipt (see Mulitex USA, Inc. v. Marvin Knitting Mills, Inc., 12 A.D.3d 169, 170, 784 N.Y.S.2d 506 [1st Dept. 2004] ). To the contrary, as indicated, plaintiff agreed to the invoice on the same day that it received it.
The date specified by the motion court as the date from which interest was to be computed is the "earliest ascertainable" under the circumstances of this case (see CPLR 5001[a] ).
We have considered plaintiff's remaining arguments and find them unavailing.