Fuji Photo Film Usa, Inc. v. Zalmen Reiss & Associates, Inc.

930 N.Y.S.2d 174 (N.Y. Sup. 2011)

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Nature of the Case

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Facts

D placed orders for 10,000 Memory Cards for use in digital cameras at a price of $19.49 each. After D had sold 4000 of the cards, D discovered that Olympus, was selling this product at a wholesale price less than that charged by P. D was no longer able to sell the remaining 6000 cards at a profit. Relying upon what it contended was a custom and practice in the industry to provide 'price protection' for goods purchased, D sought a credit for the unsold cards. On December 2, 2008, defendant returned the remaining 6000 cards to P. No authorization had been issued by P for the return of this merchandise as required under the applicable General Terms and Conditions of Sale. P declined to accept return and directed the carrier to return them to P. P declined to accept, and a game of ping-pong with the merchandise ensued. Eventually, P agreed to accept the cards on January 26, 2009. The return was 'processed' at a discounted price of $4.50 per unit. D got a credit for $27,994.50. The entire shipment was resold in a single lot to a reseller at a deep discount. D was not notified of the intent to sell the returned merchandise at the discounted price. The only issue remaining open is whether P's failure to notify D of its sale of the returned merchandise at the discounted price precludes recovery of the difference between the original invoiced price and the credit of $27,994.50 given to D.