In my meanderings through recently-reported decisions, I occasionally stumble upon a superficially-simple case that, upon examination, raises a panoply of issues worthy of a bar exam essay question. M. Slavin & Sons, Ltd. v. Penny Port, LLC, [2013 NY Slip Op 02054(U), 8/29/13 Sup. Ct. N.Y. Co., Rakower, J.) is just such a case.
The Back(fish) Story
Plaintiff, M. Slavin & Sons, Ltd. (“Slavin”), sued defendant, Penny Port, LLC d/b/a Michael Jordan’s Steakhouse (“Michael Jordan’s), for $73,976.23 for fish that Slavin sold to Michael Jordan’s in September 2011 and between March and June of 2012. Slavin alleged that Michael Jordan’s accepted, and did not reject, delivery of the fish.
Michael Jordan’s denied the material allegations of the complaint; and asserted ten affirmative defenses and two counterclaims. Michael Jordan’s claimed that the fish “[was] defective and inadequate for use by the restaurant” and sought $500,000 in damages. Slavin, in turn, denied the material allegations of the counterclaims and asserted seven affirmative defenses.
The parties cross-moved for summary judgment. Justice Rakower described the pleadings:
Plaintiff M. Slavin & Sons, Ltd. (“Plaintiff”), a wholesale fish sales business, brings this action to recover damages from defendant Penny Port, LLC d/b/a Michael Jordan’s Steakhouse (“Defendant”) based on Defendant’s alleged failure to pay for fish which Plaintiff sold and delivered to Defendant. The Complaint sets forth two causes of action: (1) breach of contract for failing to pay for fish sold and delivered to it; and (2) an account stated.