FUJI PHOTO FILM USA, INC. V. ZALMEN REISS & ASSOCIATIES, INC.
930 N.Y.S.2d 174 (N.Y. Sup. 2011)
NATURE OF THE CASE: The case was tried by the judge and both Fuji (P) and Zalmen (D) have
submitted post trial briefs.
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.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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