STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

____________________________________


GERLACH LUMBER CO., INC.,


Plaintiff

vs INDEX HO5459


BSC CONSTRUCTION CO., INC.,

PAT RIEGEL and

RELIANCE INSURANCE COMPANY

OF NEW YORK,


Defendants

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MATTAR & D'AGOSTINO

(Jonathan Schapp, Esq.

of Counsel) for Plaintiff



SAPERSTON & DAY, P.C.

(Robert W. Michalak, Esq.

of Counsel) for Defendant

BSC Construction Co.



MEMORANDUM DECISION


GERACE, J.


Plaintiff moves for summary judgment or partial summary judgment; defendant moves for dismissal of the amended complaint.


Plaintiff claims it shipped windows, lumber and other materials to be used for housing project on an invoice by invoice basis, totaling $70,496.44; that defendant paid $34,816.92, leaving an outstanding balance of $35,679.52.


Defendant claims there was a lump sum price of $59,818.00 for all the lumber and windows for the project based on an oral quote from an agent of plaintiff; that it relied on that quote to make its overall bid on the project.


Plaintiff claims the oral bid is unenforceable by virtue of the Statute of Frauds (UCC 2-201(1); that the agent had no authority to enter into a contract; that it never received any writing until February, 1992, when defendant sent a proposed contract for signature long after some shipments had been made. The Court notes defendant had not signed the proposed copy; neither had plaintiff.


Plaintiff is not entitled to summary judgment. The oral quote by the agent of plaintiff is supported by delivery of materials, the unsigned contract, the type of billing, the testimony of its agent confirming the quote, and defendant's failure to timely object to the terms until months after the initial shipment, and plaintiff's change in its billing methods months after those initial deliveries. These facts, if proven, would take this agreement out from under the defense of Statute of Frauds.


Basic agency law and the job description of Martin would bind plaintiff as to any bid or quote he gave to customers, even though he did not have authority to sign contracts. See

ROCHESTER PLUMBING V BURGART, INC. 49 AD2d 78, 370 NYS2d 716,

(4th Dept).


It is possible that at trial, the facts may provide the elements of promissory estoppel. See JAMES KING & SON, INC. V. DE SANTIS CONSTR., 97 Misc.2d 1063, 413 NYS2d 78 (1977) and cases cited at page 3, defendant's brief.


Defendant argues that plaintiff's reliance upon the account stated doctrine is misplaced. Defendant is correct for reasons and rationale cited in its brief. The Court considers it significant that plaintiff did not elect to set forth and number the items of its claim and the reasonable value or agreed price of each as provided in CPLR 3016 (f).


But, Defendant is not entitled to dismissal of the complaint at this point in the litigation. Martin, the agent, testified he did not internally at Gerlach record in written form the terms of that agreement the way he understood it. EBT p 12, line 6. He testified he put figures on an estimate, but his comments about it were not included in excerpts of testimony given to the Court.

For some reason, the proposed written contract was not sent to plaintiff until long after initial shipments had been made. The invitation to bid was May 6, 1991. Bid due date was 30 May 1991, changed 22 May 91 to June 6th. BSC note of conversation with Martin was dated 6/6/91, the same date the bids were due.


What does Gerlach say about the 10/31/91 letter of transmittal (Exhibit E, Cross motion) enclosing an unsigned contract for $20,154 for windows? What does Martin say about it? What do they say about the January 3, 1991 letter at Exhibit F? Why wasn't the proposed contract for rough and finish lumber sent until February? Why was it unsigned by defendant? How did Gerlach arrive at the price in its December 30, 1991 and February 4th, 1992 invoices (Exhibit H)?


There are serious questions of fact here which preclude summary judgment or dismissal of the amended complaint. However, plaintiff is entitled to partial summary judgment in the amount of $13,930.38, together with interest, costs and disbursements.


Defendant acknowledges this sum is due but asks the Court to refrain from awarding partial judgment because facts and issues at the trial may change or eliminate this balance. Had plaintiff sued for the $13,930.38 only, plaintiff would have been entitled to summary judgment.


There is no counterclaim to justify staying of entry or

enforcement until adjudication of the counterclaim (See Seigel, New York Practice, section 285); there is nothing in the papers before this Court raising a question of fact as to that sum; on the contrary, defendant admits it.


The motion for plaintiff for summary judgment is denied; its motion for partial summary judgment in the amount of $13,930.38 is granted, together with interest, costs and disbursements.


The motion of defendant for dismissal of the amended complaint is denied.


Dated: As of March 20, 1995

Mayville, New York



 

JOSEPH GERACE

Justice of Supreme Court