We represent a young immigrant entrepreneur, whom I shall call “Kermit”, who delivers and sells cleaning products to restaurants, almost exclusively in Gotham City. Kermit’s business, which I shall call “Ocean Breeze Soap”, was able to create a nice little niche for themselves Taking Gotham. They developed a consistent customer base, with restaurants that would call Kermit up, and Kermit would send frogs and dogs and bears and chickens and whatevers to deliver the soap, usually with same day delivery.
One such restaurant, Pete’s Luncheonette, consistently ordered Ocean Breeze Soap. But unfortunately, hard times fell on Pete’s and he sold his diner to Tex Richman, who fired Pete’s rat workers, and newly installed some second-hand equipment including a brand new dishwasher. But all the equipment must have drained Richman’s budget, because Richman failed to make the last $3,000 in payments to Kermit.
Of course, Kermit hired us to collect and sue for the Ocean Breeze Soap that he sold to the diner. Richman retained counsel to defend the lawsuit, and brought a counterclaim, stating that “Kermit failed to install the high-temp rinse cycle.”
Now, I am sure as you read this, you’re thinking to yourself, “Self, a high-temp rinse cycle is cycle on a dishwasher, that is installed by the manufacturer of the dishwasher.” And you’re also probably wondering what that has to do with Kermit. I had the identical thoughts as you. So, I called up Richman’s counsel, Murray Plotsky, who told me, “We won’t pay because you client didn’t install the high temp rinse cycle.”
Despite all of my efforts, Murray did not understand what I was trying to explain. So, I served discovery to help illustrate this to Murray. I had a plumber client friend of mine write an expert’s affidavit explaining that any sort of rinse cycle was a feature of a dishwasher, and certainly has nothing to do with the lawsuit for unpaid soap. Murray just did not understand.
So, I had no choice but to bring a Motion for Summary Judgment, in which I wrote: “The Defendant’s counterclaim is akin to suing your local gas station, who just pumped 10 gallons of unleaded. And now, you’re suing them for not installing cruise control on your car.”
At the Court hearing for the motion, the Judge simply wasn’t going to have any of this, and strongly and sternly recommended we settle the case. Of course, we worked out a payment plan for the entire balance. In this case, it was easy getting green.
Timothy Wan is the Senior Partner of the firm Smith Carroad Wan & Parikh, in Smithtown, New York, can be reached at firstname.lastname@example.org, and Tim absolutely did write that gas station comment in the actual papers in Court.