Opinion
14300 Index No. 653431/19 Case No. 2020-02381
10-05-2021
GLENCORE LTD., Plaintiff–Respondent–Appellant, v. FREEPOINT COMMODITIES LLC, Defendant–Appellant–Respondent.
Stroock & Stroock & Lavan LLP, New York (Francis C. Healy of counsel), for appellant-respondent. Herbert Smith Freehills New York LLP, New York (Peter J. Behmke of counsel), for respondent-appellant.
Stroock & Stroock & Lavan LLP, New York (Francis C. Healy of counsel), for appellant-respondent.
Herbert Smith Freehills New York LLP, New York (Peter J. Behmke of counsel), for respondent-appellant.
Webber, J.P., Singh, Scarpulla, Mendez, Rodriguez, JJ.
Order, Supreme Court, New York County (Joel M. Cohen, J.), entered May 8, 2020, which, to the extent appealed from, denied defendant's motion to dismiss plaintiff's first cause of action under CPLR 3211(a)(1) and (7), unanimously affirmed, with costs.
The motion court properly declined to dismiss plaintiff's cause of action for breach of the parties’ purchase contract premised on defendant's delivery of off-specification low sulphur fuel oil (LSFO) in Houston. The documentary evidence did not conclusively establish that the LSFO defendant delivered in Houston met the specifications set forth in the purchase contract (see generally CPLR 3211[a][1] ; Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ). Specifically, the certificates of analysis issued by the mutually-agreed upon inspector in July 2018, finding that the LSFO met the contract's specifications, reported on a sample of LSFO that was taken after the LSFO was shipped from Houston to the U.S. Virgin Islands and was blended with additional oil products (cf. Curacao Oil N.V. v. Trafigura Pte. Ltd., 189 A.D.3d 404, 132 N.Y.S.3d 774 [1st Dept. 2020], lv dismissed 37 N.Y.3d 925, 146 N.Y.S.3d 865, 169 N.E.3d 1228 [2021] ; Sempra Energy Trading Corp. v. BP Prods. N. Am., Inc., 52 A.D.3d 350, 860 N.Y.S.2d 71 [1st Dept. 2008] ). Moreover, because the parties’ contracts did not conclusively establish that the July 2018 certificates were final and binding on the parties, the certificate of analysis issued in August 2018, reporting that the same sample of LSFO did not meet certain criteria, raises questions as to whether the LSFO was off-specification after it was blended in the Virgin Islands. Defendant's argument that the July 2018 certificates were irrefutably issued pursuant to the purchase contract, not the subsequent mitigation contract, is not persuasive, and simply raises an issue of fact.
Plaintiff stated a claim for breach of contract based on quality. Defendant's reliance on the warranty disclaimer in the purchase contract is unavailing because defendant expressly warranted that the LSFO it delivered in Houston would meet the specifications set forth in that contract, and as previously discussed, defendant has failed to establish, as a matter of law, that the LSFO delivered met those specifications. Defendant's F.O.B. argument is inapposite because, as the motion court noted, plaintiff does not claim that the LSFO became off-specification in transit; rather, plaintiff claims that the LSFO was off-specification at the time it was delivered by defendant (see UCC 2–319 [1][b] ).
The court did not improvidently exercise its discretion in declining to consider defendant's argument regarding the right to cure, which was raised for the first time in reply to its motion to dismiss (see Matter of Gonzalez v. City of New York, 127 A.D.3d 632, 633, 8 N.Y.S.3d 290 [1st Dept. 2015] ). In any event, plaintiff's breach of contract claim is not barred, as a matter of law, by defendant's statutory right to cure because, at minimum, issues of fact exist as to whether plaintiff rejected the off-specification LSFO delivered in Houston and whether the blended LSFO conformed with the specifications in the purchase contract (see UCC 2–508 [2] ). Defendant's waiver argument is also not persuasive at this juncture (see Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 N.Y.3d 96, 104, 817 N.Y.S.2d 606, 850 N.E.2d 653 [2006] ).