High Sierra, Ltd.
R.F.R. Distribs. of Miami

This case is not covered by Casetext's citator
Appellate Term of the Supreme Court of New York, First DepartmentSep 10, 2003
2003 N.Y. Slip Op. 51264 (N.Y. Misc. 2003)


Decided September 10, 2003.

Defendant appeals from a judgment of the Civil Court, New York County, entered March 11, 2002 after a nonjury trial (George Postel, J.H.O.) which awarded plaintiff a recovery in the principal sum of $127,996.00, plus interest, costs and disbursements.

Judgment entered March 11, 2002 (George Postel, J.H.O.) reversed, with $30 costs, and judgment directed in favor of defendant dismissing the complaint.


In this breach of contract action to recover the purchase price of sportswear garments, the parties had agreed that the goods would be shipped by plaintiff seller from its warehouse in Hong Kong to defendant's bonded warehouse in Miami, Florida. Plaintiff was unable to effectuate delivery because the Hong Kong Trade Department, for reasons unexplained in the record, did not approve the shipment. Defendant was authorized by the United States Customs Service to operate a private bonded warehouse at the Miami location. Plaintiff failed to establish that defendant did not "furnish facilities reasonably suited to the receipt of the goods" (see, Uniform Commercial Code § 2-503[b]) or show that nondelivery of the merchandise resulted from defendant's wrongdoing. In particular, there was no proof that defendant's Miami warehouse was not eligible to receive and transship the goods from Hong Kong under applicable import quotas, or documentation from the Hong Kong Trade Department as to why defendant's warehouse was not acceptable. Under these circumstances, there was no valid tender of delivery of the goods and, in consequence, no duty to pay for them (see, Uniform Commercial Code § 2-507; § 2-711[1]).

Exercising our authority to review the record and to render the judgment that should have been rendered after a nonjury trial (see, Nestor v. Britt, 213 AD2d 255), we reverse and dismiss the complaint.

This constitutes the decision and order of the court.