Opinion
021940 CVN 2008.
Decided September 25, 2008.
Todd A. Gabor, Esq., for plaintiff.
Alan J. Binger, Esq., for defendant
Plaintiff brings this action to recover$14,371.72 for goods sold and delivered, account stated and conversion. Plaintiff is a wholesale jewelry distributor. It has a business relationship with the defendant whereby it sells goods to defendant on consignment. Plaintiff alleges that it sold goods to defendant who has neither paid nor returned the goods and is indebted to plaintiff in the above amount.
Defendant acknowledges owing $4,781.42 but denies owing the balance of the suit amount. He alleges that he purchased goods on consignment from the plaintiff but has either paid or returned all of the goods received except for the amount he acknowledges owing.
Plaintiff presented the testimony of its president Kamal Mehta. Mr. Mehta testified that he is the president of plaintiff, a jewelry wholesaler since 1986. For the past 5 or 6 years there has been a business relationship between plaintiff and defendant . When defendant takes goods from plaintiff a memo is generated which lists a description of the goods, their price and is signed by the defendant. When defendant returns with payment then an invoice is generated which shows the amount paid. If defendant returns any part of the goods then plaintiff keeps the goods. Defendant appeared at plaintiff's business on February 13, 2007 and took merchandise for the value of $5,316.64, and has neither paid for nor returned this merchandise. Defendant again appeared at defendant's business on March 28, 2007 and took merchandise for the value of $4,313.66 and has neither paid for nor returned this merchandise. On both occasions a memo was generated which was signed by defendant (See plaintiff's 3 4 in evidence).
Following these two transactions defendant requested an account history which was provided by the plaintiff(See Defendant's B in evidence). This account history, dated December 3, 2007, does not list the two outstanding memos, which according to plaintiff has neither been paid nor returned. Plaintiff also sent defendant a statement of account dated April 20, 2008 which shows an outstanding balance of $4,781.42 (see plaintiff's 5 in evidence). This is the amount which defendant acknowledges he owes.
Defendant Chaim Kohen testified about his business relationship with plaintiff. He states that there was never a balance due of more than a few thousand dollars because they usually worked at most on a two memo basis. He would pick up merchandise from plaintiff and a memo would be issued. Two or three weeks later he would return and partially pay and partially return some of the merchandise taken. An invoice would be generated for the part he paid, if paid by check, but there would be no receipt generated if he paid by cash or returned merchandise. He acknowledges receipt of merchandise on February 13 and March 28, 2007 but alleges that these two memos were either paid or the merchandise was returned to plaintiff. To prove this allegation he submits plaintiff's account history (defendant's B in evidence) and statement of account dated August 28, 2007 (Defendant's A in evidence) which show an outstanding balance of $5,781.42. In September and December of 2007 he made payments of $500.00 which bring the outstanding balance to $4,781.42.
LEGAL ANALYSIS
An admission is a statement or act by a party, or by one in privity with a party, contrary to the position the party maintains at trial. Although such out of court statements are hearsay, in a civil action, admissions by a party of any fact material to the issues are always competent evidence against the party, wherever, whenever or to whomever made. (Reed v. McCord, 160 NY 330, 54 N.E. 737; People v. Chico, 90 NY2d 585, 665 NYS2d 5). The theory on which admissions are held competent is that it is highly improbable a party will admit or state anything against himself or herself, or against his or her own interest, unless it is true (Freedman, New York Objections § 5:150 p. 5-40). Once a trial court allows introduction of an admission into evidence, the party against whom it is offered should be permitted to offer an explanation (Chamberlain v. Iba, 181 NY 486, 74 N.E. 481; Merchants Mut. Ins. Co. V. Arzillo, 98 AD2d 495, 472 NYS2d 97 [2nd. Dept. 1984]; Freedman, New York Objections § 5:150, Supra).
The account history dated December 3, 2007, account statements dated August 28, 2007 and April 20, 2008 show a balance of $4,781.42. This is an admission by the plaintiff that this is the amount actually owed. Plaintiff offered as an explanation that the memos dated February 13 and March 28, 2007 were not included in these statements because they had not yet been invoiced. These memos cannot under these facts be considered on an account stated.
An account stated is an account, balanced and rendered, with an assent to the balance either express or implied. There can be no account stated where no account was presented or where any dispute about the account is shown to have existed (Abbott, Duncan Wiener v. Ragusa, 214 AD2d 412, 625 NYS2d 178; Quoting, Interman Indus. Prods. V. R.S.M. Electron Power, 37 NY2d 151; Waldman v. Englishtown Sportwear, 92 AD2d 833).
Plaintiff has established and defendant has acknowledged an account stated in the amount of $4,781.42. There was a balance rendered and defendant has assented to owing this balance. The balance allegedly due on the memos is not an account stated as it has neither been billed or assented to by the defendant. On the contrary, defendant vehemently denies owing anything on these memos asserting that they were paid or the merchandise returned.
In order to establish a cause of action for conversion, a plaintiff must establish legal ownership of a specific identifiable piece of property and the defendant's exercise of dominion over or interference with the property in defiance of the plaintiff's rights (Meese v. Miller, 79 AD2d 237, 436 NYS2d 496; Ahles v. Aztec Enterprises, Inc. 120 AD2d 903, 502 NYS2d 821 [3rd. Dept. 1986]). Thus courts have found conversion established when the property is specifically described coins (Ahles v. Aztec Enterprises, Inc., 120 AD2d 903, Supra), specific items of jewelry and personal property (Burton v. County of Onondaga, 19 Misc 3d 1138(A), 862 NYS2d 813 [Sup. Ct. Onondaga 2008]), a diamond ring (Stern v. Sidney, 91 Misc. 33, 154 N.Y.S. 130 [App. Term 1st. Dept. 1915]).
The memos on which plaintiff relies to establish its cause of action for conversion are lacking in specificity. These memos do not list the quantity, stock or a description of the item given on consignment. They simply state "assorted jewelry", without more, and list a total price. Plaintiff has not provided proof of ownership of a specific identifiable piece of property and defendant's exercise of dominion over or interference with the property in defiance of plaintiff's rights. Plaintiff's sloppy bookkeeping cannot inure to its benefit but to its detriment. Plaintiff has failed to establish, on the records submitted, that defendant converted property belonging to it in the aggregate amount of $9,630.30.
CONCLUSION
This court finds that plaintiff has sufficiently established an account stated and defendant acknowledges owing $4,781.42. Plaintiff has failed to establish its cause of action for conversion.
Accordingly, this court grants judgment in favor of plaintiff and against the defendant on the cause of action for an account stated in the amount of $4,781.42 with interest from December 5, 2007. The causes of action for conversion is dismissed.
This constitutes the decision and judgment of this court