Page 1
Slip Copy, 34 Misc.3d 1236(A), 2012 WL 745088 (N.Y.Sup.), 2012 N.Y. Slip Op. 50386(U)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2012 WL 745088 (N.Y.Sup.))
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR
Page 2
Slip Copy, 34 Misc.3d 1236(A), 2012 WL 745088 (N.Y.Sup.), 2012 N.Y. Slip Op. 50386(U)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2012 WL 745088 (N.Y.Sup.))
the corporations; that although the order was placed with J & A, Afshar turned it over to Universal, both of which he
es of action as they are identical to those for breach of contract. With regard to those that name Afshar as an individ-
ual claiming breach of contract, fraud and piercing the corporate veil, Defendants aver that such should be dismissed
first, because there is no evidence of fraud, and second, because absent evidence of knowledge of nonconformity,
there is no basis to remove the protection of the corporate entity. With respect to the cause of action Plaintiff asserts
for an account stated, the prerequisite invoice form Plaintiff seeing the amount set forth in the Complaint precludes
York University Medical Center, 64 N.Y.2d 85, 487 N.Y.S.2d 316 (1985); Zuckerman v. City of New York, 49
N.Y.2d 557, 427 N.Y.S.2d 595 (1980). Once a prima facie showing is made by the movant, the burden shifts to the
party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of
fact which require a trial. State Bank of Albany v. McAuliffe, 97 A.D.2d 607, 467 N.Y.S.2d 933 (3d Dep’t 1983).
The essential of a cause of action for fraud are 1) representation of a material fact; 2) falsity; 3) scienter; 4) de-
Piercing the corporate veil requires a showing that the individual defendant 1) exercised complete dominion and
control over the corporation and used such control to commit a fraud or wrong against Plaintiff. See, Matter of Mor-
ris v. New York State Dep‘t of Taxation and Finance, 82 N.Y.2d 135, 603 N.Y.S.2d 807 (1993).
Under the Uniform Commercial Code, where a purchaser of goods effectively revokes acceptance, he may can-
cel the contract and recover the purchase price, the difference in cost of replacement goods, and incidental and con-
In the case at bar, the Plaintiff has made out a prima face case of entitlement to Summary Judgment on its
breach of contract claims against J & A, Universal and Afshar. There is no question that the goods shipped and re-
ceived by Padma are nonconforming. Indeed, Afshar admitted in his deposition testimony that he offered the Plain-
tiff a credit on future shipments. The photographs of the goods shipped, annexed to Plaintiffs motion papers, have
never been disclaimed and the difference between waste white envelope paper and the brightly colored plate materi-
Page 3
Slip Copy, 34 Misc.3d 1236(A), 2012 WL 745088 (N.Y.Sup.), 2012 N.Y. Slip Op. 50386(U)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2012 WL 745088 (N.Y.Sup.))
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
al is beyond dispute. In addition, the Court finds that Plaintiff has made out a case for piercing the corporate veil to
sue the individual Defendant for both breach of contract and fraud in the inducement. Afshar admitted, again in his
deposition, that the names utilized by him, in his months of e-mails to Plaintiff and Plaintiff’s middleman, both up to
and through completion of the purchase, were utilized to aid him in business and that neither of these persons exist-
The Court does agree with Defendants that no cause of action for an account stated is set forth. In addition, the
allegations of fraud against the corporate Defendants all arise out of the same set of facts as the breach of contract
claim. Accordingly’ the Defendants are entitled to partial Summary Judgment dismissing fraud claims against the
corporate Defendants and the Account stated cause of action.
Plaintiff is entitled to partial Summary Judgment on its breach of contract claims against all named Defendants
Padma Paper Mills, Ltd. v. Universal Exports, Inc.
Slip Copy, 34 Misc.3d 1236(A), 2012 WL 745088 (N.Y.Sup.), 2012 N.Y. Slip Op. 50386(U)
END OF DOCUMENT
Page 2
Slip Copy, 34 Misc.3d 1236(A), 2012 WL 745088 (N.Y.Sup.), 2012 N.Y. Slip Op. 50386(U)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2012 WL 745088 (N.Y.Sup.))
the corporations; that although the order was placed with J & A, Afshar turned it over to Universal, both of which he
es of action as they are identical to those for breach of contract. With regard to those that name Afshar as an individ-
ual claiming breach of contract, fraud and piercing the corporate veil, Defendants aver that such should be dismissed
first, because there is no evidence of fraud, and second, because absent evidence of knowledge of nonconformity,
there is no basis to remove the protection of the corporate entity. With respect to the cause of action Plaintiff asserts
for an account stated, the prerequisite invoice form Plaintiff seeing the amount set forth in the Complaint precludes
York University Medical Center, 64 N.Y.2d 85, 487 N.Y.S.2d 316 (1985); Zuckerman v. City of New York, 49
N.Y.2d 557, 427 N.Y.S.2d 595 (1980). Once a prima facie showing is made by the movant, the burden shifts to the
party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of
fact which require a trial. State Bank of Albany v. McAuliffe, 97 A.D.2d 607, 467 N.Y.S.2d 933 (3d Dep’t 1983).
The essential of a cause of action for fraud are 1) representation of a material fact; 2) falsity; 3) scienter; 4) de-
Piercing the corporate veil requires a showing that the individual defendant 1) exercised complete dominion and
control over the corporation and used such control to commit a fraud or wrong against Plaintiff. See, Matter of Mor-
ris v. New York State Dep‘t of Taxation and Finance, 82 N.Y.2d 135, 603 N.Y.S.2d 807 (1993).
Under the Uniform Commercial Code, where a purchaser of goods effectively revokes acceptance, he may can-
cel the contract and recover the purchase price, the difference in cost of replacement goods, and incidental and con-
In the case at bar, the Plaintiff has made out a prima face case of entitlement to Summary Judgment on its
breach of contract claims against J & A, Universal and Afshar. There is no question that the goods shipped and re-
ceived by Padma are nonconforming. Indeed, Afshar admitted in his deposition testimony that he offered the Plain-
tiff a credit on future shipments. The photographs of the goods shipped, annexed to Plaintiffs motion papers, have
never been disclaimed and the difference between waste white envelope paper and the brightly colored plate materi-
Page 3
Slip Copy, 34 Misc.3d 1236(A), 2012 WL 745088 (N.Y.Sup.), 2012 N.Y. Slip Op. 50386(U)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2012 WL 745088 (N.Y.Sup.))
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
al is beyond dispute. In addition, the Court finds that Plaintiff has made out a case for piercing the corporate veil to
sue the individual Defendant for both breach of contract and fraud in the inducement. Afshar admitted, again in his
deposition, that the names utilized by him, in his months of e-mails to Plaintiff and Plaintiff’s middleman, both up to
and through completion of the purchase, were utilized to aid him in business and that neither of these persons exist-
The Court does agree with Defendants that no cause of action for an account stated is set forth. In addition, the
allegations of fraud against the corporate Defendants all arise out of the same set of facts as the breach of contract
claim. Accordingly’ the Defendants are entitled to partial Summary Judgment dismissing fraud claims against the
corporate Defendants and the Account stated cause of action.
Plaintiff is entitled to partial Summary Judgment on its breach of contract claims against all named Defendants
Padma Paper Mills, Ltd. v. Universal Exports, Inc.
Slip Copy, 34 Misc.3d 1236(A), 2012 WL 745088 (N.Y.Sup.), 2012 N.Y. Slip Op. 50386(U)
END OF DOCUMENT