Hess Corp. v Genesis Realty Group LLC, 2014 NY Slip Op 08116 [122 AD3d 511]

November 20, 2014

Appellate Division, First Department

[*1]

Hess Corporation, Appellant,

v

Genesis Realty Group LLC, Defendant, and Haran Realty Co., LLC, et al., Respondents.

Cozen O’Connor, New York (Edward Hayum of counsel), for appellant.

Wachtel Missry LLP, New York (Julian D. Schreibman of counsel), for respondents.

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered March 25, 2014, which denied plaintiff’s motion for summary judgment against defendants-respondents, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Since there is no underlying or master agreement for the purchase of fuel oil from plaintiff by defendants-respondents, “each shipment represents a separate agreement to purchase [fuel oil]” ( Sharp Elecs. Corp. v Arkin-Medo, Inc. , 86 AD2d 817 [1st Dept 1982], affd 58 NY2d 986 [1983]). Thus, Uniform Commercial Code § 2-717 is inapplicable, and defendants-respondents are not entitled to withhold payment for fuel oil deliveries in 2010 to offset payments made for earlier fuel oil deliveries on which they believe they may have been shorted. Concur—Tom, J.P., Friedman, Andrias, Feinman and Kapnick, JJ..