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7 Misc.3d 557, 794 N.Y.S.2d 790, 2005 N.Y. Slip Op. 25003

(Cite as: 7 Misc.3d 557, 794 N.Y.S.2d 790)

Civil Court, Kings County.

FALLSVIEW GLATT KOSHER CATERERS, INC., Plaintiff,

Willie ROSENFELD, Defendant.

Jan. 10, 2005.

Background: Caterer brought action against customer for breach of contract. Customer moved to dismiss.

Holding: The Civil Court, City of New York, Kings County, Jack M. Battaglia, J., held that characteristics of “pro-

gram” whereby caterer provided accommodations, food, and entertainment were defined primarily by services, such

185 Frauds, Statute Of

185VII Sales of Personal Property

185VII(A) Contracts Within Statute

185k84 k. Nature of contract. Most Cited Cases

Heller, Horowitz & Felt, P.C. (Stuart A. Blander of counsel), for defendant.

Sheldon Eisenberger, for plaintiff.

tion in the Program”, and that he agreed to pay Fallsview $24,050.00 “for the Program”; that Fallsview “made the

necessary arrangements”, but Mr. Rosenfeld and his family “failed to appear at the hotel without notification” to

Fallsview; and that Mr. Rosenfeld “breached the agreement by failing to remit … payment in the amount of

$24,050.00.” (See Complaint, ¶¶ 1–7.)

In lieu of an answer, Mr. Rosenfeld has moved for dismissal of the Complaint pursuant to CPLR 3211(a)(5),

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7 Misc.3d 557, 794 N.Y.S.2d 790, 2005 N.Y. Slip Op. 25003

(Cite as: 7 Misc.3d 557, 794 N.Y.S.2d 790)

considered on the motion (see CPLR 3211[c] ); as for the documents, Mr. Rosenfeld does not question their admis-

Rosenfeld to that effect or denying that there is “some writing sufficient to indicate that a contract for sale has been

made” that was signed by or for him (see UCC § 2–201[1] ).

Addressing General Obligations Law § 5–703, the First Department has held:

“The Statute of Frauds being an affirmative defense, it was incumbent on the movant to show that there was in

would be inclined to hold the motion “in abeyance until the plaintiff has had the opportunity to depose the defend-

ant.” (See Boylan v. G.L. Morrow Co., Inc., 63 N.Y.2d 616, 618, 479 N.Y.S.2d 499, 468 N.E.2d 681 [1984]; see

also CPLR 3211[d]; UCC § 2–201 [3] [b]; DF Activities Corp. v. Brown, 851 F.2d 920, 922 [7th Cir.1988].)

Fallsview, however, does not raise these points, nor does it contend that factual issues preclude a determination

as to the enforceability of the alleged agreement in light of § 2–201(1) of the Code. (See Levin v. Hoffman Fuel Co.,

Although Fallsview has not explicitly conceded that no qualifying writing exists, both parties have focused their

legal and factual arguments on a single question that is, whether the alleged agreement that is the basis for

Fallsview’s action is a “contract for the sale of goods for the price of $500 or more” within the meaning of § 2–

201(1). The parties having charted that course (see Vasinkevich v. Elm Drugs, 208 A.D.2d 522, 523, 616 N.Y.S.2d

808 [2d Dept. 1994] ), supported by considerations of judicial economy, the Court sees no compelling reason not to

a sale of goods, currently Article 2 of the Uniform Commercial Code as adopted in this State, or to apply the law

applicable to service contracts, the general law of contracts or some specialized portion thereof. The agreement al-

leged in the Complaint (and limiting attention for the moment to the Complaint alone) calls for the furnishing of

“accommodations, food and entertainment” (Complaint, ¶ 1), with “food” qualifying as “goods” (see UCC § 2–

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7 Misc.3d 557, 794 N.Y.S.2d 790, 2005 N.Y. Slip Op. 25003

(Cite as: 7 Misc.3d 557, 794 N.Y.S.2d 790)

105[1].)

In Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792 [1954], a case decided under the pre-Code

Sales Act, the Court of Appeals held that “when service predominates, and transfer of personal property is but an

incidental feature of the transaction, the transaction is not deemed a sale within the Sales Act” (id. at 104, 123

N.E.2d 792). “[I]t is the transaction, regarded in its entirety, which must determine its nature and character” (id. at

106, 123 N.E.2d 792). The court “look[s] at the transaction for what it actually is” (id. at 107, 123 N.E.2d 792),

relied upon by Mr. Rosenfeld here:

“Not at all analogous to the case before us is our decision … holding that, ‘where a customer enters a restaurant,

receives, eats and pays for food, delivered to him on his order, the transaction is a purchase of goods.’… While it

has been said that a restaurant owner does not sell food, but rather renders a service, the fact is that there is ‘a sale

partridges, sells the birds, although the guests paid a total sum for food and lodging.” (Id.)

In reaching the result it did in Perlmutter, the Court was influenced by the consequence that “if the transaction

was deemed a sale, liability would attach irrespective of negligence or other fault.” (See Perlmutter v. Beth David

Hospital, 308 N.Y. at 107, 123 N.E.2d 792.) In a subsequent decision, the Court of Appeals noted that its analysis in

Perlmutter was “supported by policy considerations peculiar to the impure blood cases”, and stated that “the court’s

serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.” (UCC § 2–314[1]

[emphasis added].) Thus the Code resolved the conflict among the states on the question addressed by Temple v.

Keeler, adopting the answer given by our Court of Appeals. (See Sofman v. Denham Food Service, Inc., 37 N.J. 304,

309–12, 181 A.2d 168, 171–73 [1962] [Schettino, J., concurring].)

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7 Misc.3d 557, 794 N.Y.S.2d 790, 2005 N.Y. Slip Op. 25003

(Cite as: 7 Misc.3d 557, 794 N.Y.S.2d 790)

County 1957]; Grossman v. Hotel Astor, 166 Misc. 80, 1 N.Y.S.2d 307 [Manhattan Mun. Ct. 1937].)

In the most recent of these decisions, England v. Sanford, 167 A.D.2d 147, 561 N.Y.S.2d 228 [1st Dept. 1990],

aff’d 78 N.Y.2d 928, 573 N.Y.S.2d 639, 578 N.E.2d 437 [1991], the First Department held that a plaintiff who sus-

tained personal injuries as a result of eating unwholesome food at a party catered by the defendant could amend her

complaint to allege breach of warranty. The defendant caterer argued that the “theory was [not] viable since the ser-

vice aspects of the defendant’s contract with the host of the party predominated over its sales aspect, i.e. that defend-

ant was engaged mainly to organize a party and that his provision of food was merely incidental to this main pur-

pose.” (Id. at 148, 561 N.Y.S.2d 228.) Taking a “pragmatic point of view”, the court rejected the argument, conclud-

ing that “if policy considerations dictate that a restaurant owner should be liable without fault for serving unwhole-

some food …, so too should a caterer.” (Id.) The court cited § 2–314(1), but did not explain why the issue was not

resolved by that provision’s explicit language. It may be that the party was catered at the home of the host or some

455, 466, 719 N.Y.S.2d 623, 742 N.E.2d 98 [2000]; Mangam v. City of Brooklyn, 98 N.Y. 585, 591–92 [1885].)

Moreover, “the predominant purpose test ... presupposes that if Article 2 is to apply or not to apply, it should apply

(or not apply) to the whole transaction.” (White and Summers, Uniform Commercial Code, § 1–1, p. 28 [5th Ed.

2000]; see also Perlmutter v. Beth David Hospital, 308 N.Y. at 104, 123 N.E.2d 792.)

New York courts, nonetheless, have seemed willing to focus on the nature of the dispute between the parties,

Moreover, “[t]he rules of construction of statutes are never absolute and must always be considered in the light

of surrounding circumstances; the same word may be used in varying senses depending upon the intent of the Legis–

lature.” (Colon v. Aetna Casualty & Surety Co., 64 A.D.2d 498, 503, 410 N.Y.S.2d 634 [2d Dept. 1978], aff’d 48

N.Y.2d 570, 423 N.Y.S.2d 908, 399 N.E.2d 938 [1980]; see also Becker v. McCrea, 119 A.D. 56, 58, 103 N.Y.S.

963 [2d Dept. 1907], rev’d on other grounds 193 N.Y. 423, 86 N.E. 463 [1908].) A statutory warranty is a different

N.E.2d 1082 [1989].)

“Predominant purpose” analysis may, and does, appropriately reflect the kinds of rules to be applied as its result

and attendant policy considerations. This is not to say that the contract is “divisible” (see Perlmutter v. Beth David

Hospital, 308 N.Y. at 104, 123 N.E.2d 792), but that the Code may be. For present purposes, this means that the

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7 Misc.3d 557, 794 N.Y.S.2d 790, 2005 N.Y. Slip Op. 25003

(Cite as: 7 Misc.3d 557, 794 N.Y.S.2d 790)

Fallsview was the “service of Kosher food”, while the hotel accommodations and entertainment were merely “inci–

Defendant’s contention that the “predominant purpose” of the alleged agreement is the sale of food is said to be

“compelled by the very nature of the Passover holiday” (see Affidavit in Support of Motion to Dismiss, ¶ 7.)

“The essential religious obligation during this eight day period and the principal reason why people attend events

similar to the Program sponsored by plaintiff is in order to facilitate their fulfillment of the requirement to eat only

ply Affidavit in Further Support of Motion to Dismiss Complaint, ¶ 8 [footnote omitted].) Although, generally, an

attorney’s sworn or affirmed statement as to the facts is “without evidentiary value” because the attorney has no per-

sonal knowledge of them (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d

718 [1980] ), Mr. Blander appears to be in a position to speak to the matters alleged in his Affidavit. The Affidavit

of Mark Weiss, Fallsview’s officer, is accompanied by “confirmation” documents, two of which purport to confirm

Mr. Weiss’s Affidavit is also accompanied by ten sheets, designated “Kutcher’s Country Club Daily Activities”

for Sunday, April 4 through Tuesday, April 13, 2004. The activities possible include tennis, racquetball, swimming,

Swedish massage, “make over face lift show”, “trivia time”, aerobics, bingo, ice skating, dancing, “showtime”,

“power walk”, arts and crafts, day camp, ping-pong, Yiddish theater, board games, horse racing, horseback riding,

wine tasting, and indoor baci and that is only through Wednesday. Throughout the period, there are Traditional and

The Court accepts Mr. Blander‘s characterization of Fallsview’s Passover program as an “experience”, and has

no basis to dispute that, for him, its “very essence” is the “presentation and enjoyment of abundant, frequent and

high quality Kosher for Passover cuisine.” But a review of the characteristics of the “program”, which is the subject

matter of the alleged agreement, leads the Court to conclude that the “essence” of the family and communal “experi-

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7 Misc.3d 557, 794 N.Y.S.2d 790, 2005 N.Y. Slip Op. 25003

(Cite as: 7 Misc.3d 557, 794 N.Y.S.2d 790)

Frauds, is supported by the structure, terms, purpose and context of the statutory provision. As with all Statutes of

Fraud, the purpose of § 2–201 is “to avoid fraud by preventing the enforcement of contracts that were never in fact

made.” (Henry L. Fox Co., Inc. v. William Kaufman Organization, Ltd., 74 N.Y.2d at 140, 544 N.Y.S.2d 565, 542

omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the

quantity of goods shown in the writing.” (See UCC § 2–201[1].) The importance of a quantity term is also evident in

the “partial performance” exception, which is limited to “goods for which payment has been made and accepted or

which have been received and accepted.” (See UCC § 2–201[3] [c].) For the Code, quantity is even more important

than price. (See UCC § 2–305[1].) A contract of the type involved here would rarely, if ever, specify the “quantity”

“goods”, and, if the latter, how is an “all inclusive” cost treated? Here, the Complaint alleges a total due of

$24,050.00 for fifteen persons, and Mr. Weiss provides ten “confirmation” documents ranging in amount from

$1,750.00 to $3,750.00. Are all or any covered, or only some?

Plaintiff argues that “Defendant’s proposition that a hotel reservation is a sale of goods would render all reserva-

Defendant’s motion to dismiss is denied.

N.Y.City Civ.Ct.,2005.

Fallsview Glatt Kosher Caterers, Inc. v. Rosenfeld

7 Misc.3d 557, 794 N.Y.S.2d 790, 2005 N.Y. Slip Op. 25003

END OF DOCUMENT