Walter Boss, Inc. v. Roncalli Freight Co.

210 A.D.3d 1124

179 N.Y.S.3d 316

WALTER BOSS, INC., et al., appellants,

v.RONCALLI FREIGHT COMPANY, INC., doing business as Coastline Freight, et al., respondents.

2019-08692, 2019-11542

Index No. 20146/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—April 25, 2022

November 30, 2022

Marshall M. Stern, P.C., Huntington Station, NY (Judith Donnenfeld of counsel), for appellants.

Patricia Byrne Blair, Blue Point, NY, for respondents.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from (1) a judgment of the Supreme Court, Suffolk County (James Hudson, J.), dated June 10, 2019, and (2) an order of the same court dated July 10, 2019. The judgment, insofar as appealed from, upon a decision of the same court dated November 8, 2018, made after a nonjury trial, is in favor of the plaintiffs and against the defendants in the principal sum of only $63,310.73, and is in favor of the defendant Roncalli Freight Company, Inc., doing business as Coastline Freight, and against the plaintiffs on the counterclaim in the principal sum of $214,038.46, plus monthly service charges and storage fees, and attorneys’ fees. The order denied the plaintiffs’ motion to vacate and resettle the judgment.

ORDERED that the judgment is reversed insofar as appealed from, on the law and the facts, the plaintiffs are awarded the principal sum of $69,310.73, the counterclaim is dismissed, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriate amended judgment in accordance herewith; and it is further, ORDERED that the appeal from the order is dismissed as academic in light of our determination on the appeal from the judgment; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The plaintiffs, Walter Boss, Inc. (hereinafter WBI), a home improvement contractor, Pines Propane Corp. (hereinafter Pines Propane), a retail supplier of propane fuel and heating equipment, and Pines and Pools, Inc., a pool installation and maintenance corporation, are owned by Walter Boss. The defendants, Roncalli Freight Company, Inc., doing business as Coastline Freight (hereinafter Coastline), Pines Commercial Properties, LLC, Pines Operations, LLC, and Pines Acquisitions Holdings, LLC, are owned by Eric von Kuersteiner and Anthony Roncalli. Between 2004 and 2009, the plaintiffs provided labor and materials to some of the defendants, as well as to other various corporations owned by von Kuersteiner and Roncalli. WBI leased office space from an entity owned by von Kuersteiner and Roncalli. WBI and Pines Propane were customers of Coastline.

In May 2011, after having previously attempted to settle outstanding invoices and monies owed to the plaintiffs and outstanding rent owed by WBI, Boss and von Kuersteiner met again to discuss a settlement. According to the plaintiffs, it was agreed that the plaintiffs would forego their claims against the defendants in return for a freight shipping credit from Coastline in the amount of $140,000. According to the plaintiffs, this credit was proposed by von Kuersteiner in lieu of a cash payment. On May 2, 2011, Boss signed two form applications, one for Pines Propane and another for WBI, entitled "COASTLINE FREIGHT CREDIT APPLICATION AND AGREEMENT." However, the words "CREDIT APPLICATION AND AGREEMENT" were crossed out, and handwritten in the space reserved for credit card information were the letters "COD." The terms of the application required the payment of all freight charges upon invoicing and required the payment of attorneys’ fees in the event of a default as well as a 2% monthly service charge on all past due balances. Between May 9, 2011, and June 2, 2012, Coastline accepted shipments for the plaintiffs and did not bill for service charges on alleged past due balances. On June 21, 2012, the plaintiffs received a revised proposed settlement agreement, which they did not accept. On July 3, 2012, Coastline stopped accepting shipments from the plaintiffs and informed them that no further items would be shipped until the accounts were brought current.

On July 5, 2012, the plaintiffs commenced this action, inter alia, to recover damages for breach of contract. The plaintiffs alleged that the parties entered into an oral agreement in May 2011 to settle their financial disputes whereby the plaintiffs would be provided with a credit of $140,000 against services to be rendered by Coastline, that the defendants breached the agreement on July 3, 2012, by refusing to allow the plaintiffs to ship freight, and that at the time of the breach, there remained an unused credit of $69,310.73. The defendants’ amended answer to the second amended complaint included a counterclaim by Coastline alleging breach of contract. At a nonjury trial, the defendants introduced into evidence two statements dated April 3, 2016, representing the allegedly unpaid balance due by WBI and Pines Propane to Coastline. As evidence of a written agreement, the defendants introduced into evidence the two form applications dated May 2, 2011, for Pines Propane and WBI, entitled "COASTLINE FREIGHT CREDIT APPLICATION AND AGREEMENT," with the words "CREDIT APPLICATION AND AGREEMENT" crossed out and the letters "COD" handwritten in the space reserved for credit card information. In addition to this documentary evidence, the defendants elicited testimony regarding an unpleaded claim by Coastline for an account stated.

In a decision dated November 8, 2018, the Supreme Court found that the plaintiffs established the existence of an oral agreement and the defendants’ breach thereof. The court also found that Coastline established the existence of a written agreement, an implied-in-fact contract, and, alternatively, a claim for an account stated. A judgment dated June 10, 2019, was then issued upon the decision in favor of the plaintiffs and against the defendants in the principal sum of $63,310.73, and in favor of...