Rienzi & Sons, Inc. v. I Buonatavola Sini S.R.L.

UNITED STATES DISTRICT COURT                                              
EASTERN DISTRICT OF NEW YORK                                              
                                   NOT FOR PUBLICATION                
Rienzi & Sons, Inc.,                                                      
                                  MEMORANDUM & ORDER                  
                                     Plaintiff,                       
                                     20-cv-5704 (ERK) (SJB)           
      – against –                                                     

I Buonatavola Sini S.R.L.,                                                

                Defendant.                                            


KORMAN, J.:                                                               

 Plaintiff Rienzi & Sons, Inc. (Rienzi) asserts several causes of action against 
defendant and Italian cheesemaker I Buonatavola Sini S.R.L. (Buonatavola). This 
dispute arose out of Rienzi’s order of a large quantity of Pecorino Romano (pecorino) 
cheese from Buonatavola. The First Amended Complaint (FAC) asserted causes of 
action for (1) breach of oral agreement, (2) damage to business reputation, (3) lost 
profits, (4) incidental/consequential damages, and (5) breach of written agreement 
in the alternative. Buonatavola moves to dismiss the complaint pursuant to Fed. R. 
Civ. P. 12(b)(6) for failure to state a claim and Rienzi cross-moves for leave to file a 
second  amended  complaint.  The  proposed  Second Amended  Complaint  (SAC) 
removes the independent damages causes of action and instead pleads them as types 
of damages sought under both breach-of-contract claims. The proposed complaint 
also  adds  new  causes  of  action  for  (1)  breach  of  the  implied  warranty  of 
merchantability, and (2) fraudulent inducement.                           

 For the reasons stated below, each motion is granted in part and denied in part. 
Rienzi may go forward with its proposed amended claims for breach of the “written 
agreement” and for breach of the implied warranty of merchantability. Its claims for 

breach of the “oral agreement” and for fraudulent inducement, on the other hand, 
may not proceed.                                                          
                     BACKGORUND                                       
 Rienzi,  a  New  York  corporation,  provides  alternative  accounts  of  its 

agreement with Buonatavola, an Italian company. In both alternatives, Buonatavola 
agreed to send over 40,000 pounds of pecorino to Rienzi; both parties understood 
that Rienzi would then sell the pecorino in the United States. See Decl. of Richard 

E. Freeman, Ex. 1, SAC, ¶¶ 51, 94, ECF No. 18-3. The alternatives differ, however, 
regarding the timing of Rienzi’s payment obligation. In the first alternative, which 
Rienzi refers to as the “oral agreement,” Rienzi was only responsible for paying 
Buonatavola if Rienzi could successfully resell the pecorino. SAC ¶¶ 51–54. In the 

second  alternative,  which  Rienzi  calls  the  “written  agreement”  or  “purchase 
agreement,” no provision specifically conditioned Rienzi’s payment obligation on 
its successful resale of the pecorino. SAC ¶¶ 93–94.                      
 Rienzi  submitted  a  copy  of  a  “deferred  invoice”  that  Buonatavola  sent 
Rienzi—the only writing in the record that reflects a contract between the parties. 

See Decl. of Richard E. Freeman, Ex. A, ECF No. 18-3. That invoice provides that 
Buonatavola sent Renzi 19,359 kilograms of pecorino on May 26, 2016 and that 
payment of €150,982 was due on July 26, 2016. Id.                         

 Rienzi packed the pecorino under its own brand name, and, in June and July 
2016, sold the cheese to a company called Wakefern. SAC ¶ 12. Wakefern then 
placed the cheese for sale in various Shop Rite supermarkets. SAC ¶ 13. Soon after, 
customers began to complain that the cheese “was of poor quality or otherwise 

defective,” and Rienzi was forced to issue credits to the Shop Rite stores. SAC ¶ 14. 
In August, Wakefern demanded that Rienzi accept return of the entire lot of pecorino 
and refund Wakefern its purchase price. SAC ¶ 15. Rienzi complied. SAC ¶ 16.  

 While these events were transpiring, Renzi informed Buonatavola that the 
pecorino “was of poor quality, defective, and . . . otherwise unacceptable” and that 
Rienzi would need to return the pecorino. SAC ¶ 20. Buonatavola representative 
Massimiliano Sini visited Rienzi’s warehouse to inspect the pecorino, confirmed that 

it was defective, and informed Rienzi that another representative — Pierluigi Sini 
— would travel to the warehouse to arrange the product’s return. SAC ¶¶ 23–26. 
Rienzi retained the pecorino in its freezers in anticipation of Buonatavola organizing 

a return, but Buonatavola never attempted to follow through on its alleged promise. 
SAC ¶¶ 27–29. Two and a half years later, in around February 2019, Buonatavola 
directed Rienzi to send a sample to a potential buyer, who declined to purchase the 

pecorino. SAC ¶¶ 30–33. Rienzi then sent the pecorino to a food laboratory for 
testing. SAC ¶ 37. The results suggested that Buonatavola had failed to pasteurize 
the cheese, which could have caused the defects that customers complained about. 

SAC ¶¶ 38–39 & n.4; see also Decl. of Richard E. Freeman, Ex. I, ECF No. 18-3. 
                      DISCUSSION                                      
  I. Legal Framework                                                  
 “To survive a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to state a claim to relief that is plausible on its face.”  
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “The 
court accepts all well-pleaded allegations in the complaint as true, drawing all 

reasonable inferences in the plaintiff’s favor.”  Operating Local 649 Annuity Tr. 
Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010). Still, 
“[t]hreadbare recitals  of the  elements of  a  cause  of  action, supported by  mere 
conclusory statements, do not suffice.”  Lundy v. Catholic Health Sys. of Long Island 

Inc., 711 F.3d 106, 113 (2d Cir. 2013) (quoting Iqbal, 556 U.S. at 678). Exhibits 
attached to the complaint or incorporated by reference may be considered on a 
motion to dismiss. DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010).
 II. Prejudice of Allowing Amendment                                  
 Rienzi’s motion to amend is discussed at the outset because doing so will 

facilitate the disposition of the cross-motions. Federal Rule 15 directs courts to 
“freely give leave” to amend pleadings before trial “when justice so requires.” Fed. 
R. Civ. P. 15(a)(2). Therefore, “[i]n the absence of any apparent or declared reason—

such as undue delay, bad faith or dilatory motive on the part of the movant, repeated 
failure to cure deficiencies by amendments previously allowed, undue prejudice to 
the opposing party by virtue of allowance of the amendment, futility of amendment, 
etc.—the leave sought should, as the rules require, be ‘freely given.’” Foman v. 

Davis, 371 U.S. 178, 182 (1962). “In gauging prejudice, [a court] consider[s], among 
other  factors,  whether  an  amendment  would  require  the  opponent  to  expend 
significant  additional  resources  to  conduct  discovery  and  prepare  for  trial  or 

significantly delay the resolution of the dispute.” Ruotolo v. City of New York, 514 
F.3d 184, 192 (2d Cir. 2008) (internal quotation marks omitted). Additionally, “[a] 
proposed amendment to a complaint is futile when it could not withstand a motion 
to dismiss.” F5 Cap. v. Pappas, 856 F.3d 61, 89 (2d Cir. 2017).           

 Buonatavola argues that it will suffer prejudice if Rienzi is allowed to amend 
its complaint because it would be forced to “endlessly chase a moving target.” Def.’s 
Reply Mem. of Law in Supp. of Its Mot. to Dismiss and Opp’n to Pl.’s Cross-mot. 

at 15, ECF No. 19 [hereinafter Def.’s Reply]. Rienzi’s proposed complaint, however, 
does not move this case’s target in any meaningful way. While Rienzi proposes 
subsuming some of its original claims as damages sought under other claims and 

pursuing relief under different legal theories, the gravamen of the complaint remains 
the same: Buonatavola agreed to sell Rienzi pecorino of a certain quality, and Rienzi 
suffered  damages  when  Buonatavola  tendered  pecorino  of  an  inferior  quality; 

Buonatavola then compounded the harm by promising to repossess the pecorino and 
then failing to do so. In fact, Buonatavola admits that the proposed Second Amended 
Complaint “do[es] not add or reference any new evidence.” Id. at 14. Under these 
circumstances, the proposed “amendment would [not] require  [Buonatavola] to 

expend significant additional resources to conduct discovery and prepare for trial or 
significantly delay the resolution of the dispute.” Ruotolo, 514 F.3d at 192 (internal 
quotation marks omitted); see also Hanlin v. Mitchelson, 794 F.2d 834, 841 (2d Cir. 

1986) (allowing amendment where “the new claims are merely variations on the 
original theme” of the conduct complained of and where the new proposed claims 
“were forecast by the original . . . allegations”); Bryant v. Steele, 64 F. Supp. 3d 441, 
445–46 (E.D.N.Y. 2014) (“discern[ing] little, if any, prejudice . . . as a result of 

permitting  the  Plaintiff”  to  amend  its  complaint  where  the  proposed  amended 
complaint  alleged  “the  same  set  of  circumstances  and  facts”  as  the  previous 
iteration).                                                               
III. Breach of the Oral Agreement                                     
 To prevail on a breach-of-contract claim under New York law, a plaintiff must 

prove:  “(1)  the  existence  of  a  contract,  (2)  performance  by  the  party  seeking 
recovery, (3) nonperformance by the other party, and (4) damages attributable to the 
breach.” Moreno-Godoy v. Kartagener, 7 F.4th 78, 85 (2d Cir. 2021).       

 Buonatavola argues that the oral agreement is unenforceable under the statute 
of  frauds  provision  codified  in  the  New  York  Uniform  Commercial  Code 
(N.Y.U.C.C.) because aspects of that alleged agreement—specifically the term that 
conditioned Rienzi’s payment obligation on its successful resale of the pecorino—

are  not  evidenced  by  a  writing.1  Buonatavola  is  incorrect. The  invoice  Rienzi 
submitted suffices to defeat a statute of frauds defense.                 
  The N.Y.U.C.C.’s statute of frauds provides that “a contract for the sale of 

goods for the price of $500 or more is not enforceable by way of action or defense 
unless there is some writing sufficient to indicate that a contract for sale has been 
made between the parties and signed by the party against whom enforcement is 
sought  or by  his  authorized  agent  or  broker.”  N.Y.U.C.C.  § 2-201(1); see also 

Wellington Farms of Mass., Inc. v. Capital Area Food Bank, 156 A.D.3d 662, 663 


 1 The “affirmative defense of the Statute of Frauds is appropriately raised on 
a motion to dismiss.” Mercator Corp. v. Windhorst, 159 F. Supp. 3d 463, 471 
(S.D.N.Y. 2016) (internal quotation marks omitted).                       
(2d Dep’t 2017). This provision “simply requir[es] ‘that the writing afford a basis 
for believing that the offered oral evidence rests on a real transaction.’” Bazak Int’l 

Corp. v. Mast Indus., Inc., 73 N.Y.2d 113, 120 (1989) (quoting U.C.C. § 2-201 
official cmt. 1). Thus, “in order to satisfy that Statute of Frauds provision, the writing 
need not contain all the material terms of the agreement.” Horn Waterproofing Corp. 

v. Horn Constr. Co., 104 A.D.2d 851, 853 (2d Dep’t 1984); accord U.C.C. § 2-201 
official cmt. 1; see also Apex Oil Co. v. Vanguard Oil & Serv. Co. Inc., 760 F.2d 417, 
423 (2d Cir. 1985) (“[S]ection 2-201 does not require parties precisely to set forth 
every material term of their agreement.”).2 Rather, “there are only three ‘invariable 

requirements’ that a writing must meet. ‘First, it must evidence a contract for the sale 
of goods; second, it must be “signed”, a word which includes any authentication 
which identifies the party to be charged; and third, it must specify a quantity.’” Horn 

Waterproofing, 104 A.D.2d at 853 (quoting U.C.C. § 2-201 official cmt. 1).  
 In this case, the invoice Rienzi submitted satisfies each of these requirements. 
It  evidences  that  a  contract  was  made  for  the  sale  of  pecorino,  a  good.  It  is 


 2 In this regard, the N.Y.U.C.C.’s statute of frauds differs from the statute of 
frauds in New York “General Obligations Law  § 5-701 wherein the writing or 
memorandum ‘must contain expressly or by reasonable implication all the material 
terms of the agreement’” Dorman v. Cohen, 66 A.D.2d 411, 416 & n.* (1st Dep’t 
1979) (quoting Morris Cohon & Co. v. Russell, 23 N.Y.2d 569, 575 (1969)) (noting 
this distinction). Neither party disputes the application of the N.Y.U.C.C. to this 
transaction and that the provisions of that code therefore control. See AP Propane, 
Inc. v. Sperbeck, 157 A.D.2d 27, 29 (3d Dep’t 1990).                      
authenticated by Buonatavola, the party being charged with breach. And it specifies 
the quantity of pecorino to be delivered—19,359 kilograms. Therefore, the statute 

of frauds does not bar Rienzi from suing for breach of a contract involving this sale 
and alleging the existence an additional material term conditioning Rienzi’s payment 
obligation on its successful resale of the pecorino. Indeed, New York courts routinely 

allow parties to sue under the N.Y.U.C.C. when a contract is merely evidenced by 
an invoice. See Mulitex USA, Inc. v. Marvin Knitting Mills, Inc., 12 A.D.3d 169, 169 
(1st Dep’t 2004); Quality Packaging Supply Corp. v. R.H. Carlson Co., 158 A.D.2d 
936, 936 (4th Dep’t 1990); B & R Textile Corp. v. Domino Textiles Inc., 77 A.D.2d 

539, 539–40 (1st Dep’t 1980).                                             
 Nevertheless, Rienzi’s claim for breach of the oral agreement fails for a 
different  reason:  The  N.Y.U.C.C.’s  parol  evidence  rule  prevents  Rienzi  from 

pursuing a claim regarding this transaction based on an allegation that the contract 
conditioned Rienzi’s payment obligation on its successful resale of the pecorino.3 


 3 The parol evidence rule may serve as a basis for granting a motion to dismiss 
under Rule 12(b)(6). See Holloway v. King, 161 F. App’x 122, 124 (2d Cir. 2005) 
(holding that “it was . . . proper for the district court to invoke the parol evidence 
rule to grant the Rule 12(b)(6) motion to dismiss”); First Lincoln Holdings, Inc. v. 
Equitable Life Assurance Soc’y, 43 F. App’x 462, 463–64 (2d Cir. 2002) (affirming 
a grant of a motion to dismiss under Rule 12(b)(6) based on the application of the 
parol evidence rule); cf. Schron v. Troutman Sanders LLP, 20 N.Y.3d 430, 434–37 
(2013) (affirming a grant of New York state court motion to dismiss based on the 
application of the parol evidence rule).                                  
Under the parol evidence rule “[t]erms . . . which are otherwise set forth in a writing 
intended by the parties as a final expression of their agreement with respect to such 

terms as are included therein may not be contradicted by evidence of any prior 
agreement.” N.Y.U.C.C. § 2-202. Here, the invoice Rienzi submitted appears to 
represent “a final expression of [the parties’] agreement” and provides that Rienzi’s 

payment  was  due  to  Buonatavola  on  July  26,  2016  without  mentioning  any 
conditions.4 Id. Therefore, Rienzi may not allege that its responsibility to pay to 
Buonatavola could be delayed past July 26, 2016 if it failed to resell the pecorino, as 
any such provision would “contradict[]” the invoice. Id.                  

 The Fourth Department came to a similar conclusion in Battista v. Radesi, 112 
A.D.2d 42 (4th Dep’t 1985). In Battista, the “defendant received a shipment of 1,000 
cases of wine at a total price of $18,808.75” and the “invoice . . . contained the words 

‘net 45 days’ in the box marked ‘terms.’” Id. at 42. When sued for the balance months 
later, the “defendant claimed that the parties had agreed that payment would not be 
due until defendant’s entire inventory was sold.” Id. The invoice, as the invoice in 
this case, “included the names and addresses of the parties, the date, payment terms, 

a description and price of each of the [items] purchased, and a total price for the 


 4 Rienzi does not allege that it ever objected to this invoice or otherwise 
explain—either in its complaint or its briefing—why this invoice should not be 
understood to reflect the parties’ final agreement.                       
shipment” and thus “represented a final expression of the parties.” Id. Under these 
circumstances, the Appellate Division rejected the “defendant’s assertion that the 

parties had agreed to different terms of payment” because “[a] writing intended by 
the parties to be the final expression of their agreement may not be contradicted by 
evidence  of  any  prior  agreement.”  Id.  (citing  N.Y.U.C.C.  § 2-202);  see  also 

Sunkyong Am., Inc. v. Beta Sound of Music Corp., 199 A.D.2d 100, 101 (1st  Dep’t 
1993) (“The parol evidence rule embodied in UCC 2-202 bars the introduction by 
the defendant of proof of any alleged oral agreement between the parties which 
would  vary  the  terms  of  the  plaintiff’s  invoices,  which  were  the  final  written 

expression of the parties' sales agreement” (citing Battista, 112 A.D.2d at 42)). 
Therefore, Rienzi’s claim for breach of the oral agreement is dismissed.  
IV. Breach of the Purchase Agreement and Implied Warranties           

 In the alternative, Rienzi asserts claims for breach of contract and the implied 
warranty  of  merchantability,  both  based  on  the  alleged  purchase  agreement. 
According to Rienzi, the parties entered into this agreement on the understanding 
that Rienzi would resell the cheese in the United States. Similar to Rienzi’s claim for 

breach of the oral agreement, the invoice Rienzi submitted suffices to defeat any 
statute of frauds defense to these claims based on the alleged purchase agreement.  
Indeed, Buonatavola affirms that the parties made such a contract and claims that it 

is still owed the purchase price. Def.’s Mem. of Law in Supp. of Its Mot. to Dismiss 
at 3–4, ECF No. 17-1. Rienzi alleges that Buonatavola breached this agreement 
when it provided pecorino that was “poor quality, non-confirming and defective,” 

SAC ¶ 113, and thus unfit for resale. This alleged breach mirrors Rienzi’s claim that 
Buonatavola breached the warranty of merchantability that the N.Y.U.C.C. implies 
in contracts for the sale of goods. Accordingly, these claims are discussed together. 

  Buonatavola argues that Rienzi’s claims for breach of the purchase agreement 
and the implied warranty of merchantability must be dismissed for three independent 
reasons. None of these reasons, however, provide a sound basis for dismissal. 
 First, Buonatavola argues that Rienzi fails to allege any terms of the contract 

that Buonatavola allegedly breached. Not so. According to  Rienzi’s allegations, 
Buonatavola and Rienzi entered a contract whereby Rienzi would purchase a very 
large quantity of pecorino from Buonatavola, and both parties understood that Rienzi 

would then attempt to sell that pecorino in the United States. Thus, logic and the 
N.Y.U.C.C.’s  implied  warranty  provisions  dictate  that  Buonatavola  implicitly 
warranted that the pecorino it shipped to Rienzi would be suitable for resale in at 
least some sense. See N.Y.U.C.C. §§ 2-314, 2-315. At the very least, that warranty 

“provide[d] for a minimal level of quality,” even if it “d[id] not mean that the product 
[would] fulfill [the] buyer’s every expectation.” Denny v. Ford Motor Co., 87 N.Y.2d 
248,  258  n.4  (1995)  (alterations  omitted).  Buonatavola  protests  that  accepting 

Rienzi’s allegations wound “graft onto the Invoice completely new terms,” Def.’s 
Reply at 6, but that argument ignores the implied character of the alleged warranty. 
And unlike the alleged contingent payment term of the oral agreement, this implied 

warranty does not contradict any terms in the invoice.                    
 Here, Rienzi alleges that the pecorino was “of poor quality, non-conforming 
and defective” and that customers returned the product to supermarkets because of 

complaints about “the  smell,  taste and quality”  of the  cheese.  SAC  ¶ 60. The 
laboratory report attached to the complaint suggests that  Buonatavola failed to 
pasteurize the pecorino, which could have caused the “bad and unpleasant smells 
emanating” from it. SAC ¶ 38. This is enough to plausibly allege that Buonatavola 

tendered cheese that Rienzi could not resell and thereby breached the contract’s 
implied warranties.                                                       
 Second, Buonatavola contends that Rienzi waived any claim it might have 

based on the alleged defective nature of the pecorino because  Rienzi accepted 
Buonatavola’s shipment. While Buonatavola is correct that  Rienzi accepted the 
pecorino, it does not follow that Rienzi may not sue for the alleged nonconforming 
nature of the cheese.                                                     

 Under the N.Y.U.C.C., “[a]cceptance of goods occurs when the buyer: (a) 
after a reasonable opportunity to inspect the goods signifies to the seller that the 
goods are conforming or that he will take or retain them in spite of their non-

conformity; or (b) fails to make an effective rejection . . . [after] the buyer has had a 
reasonable opportunity to inspect them; or (c) does any act inconsistent with the 
seller's ownership.” N.Y.U.C.C. § 2-606. Here, Rienzi’s admission that it repackaged 

the pecorino under its own labeling and sold it to Wakefern to place in supermarkets 
establishes  that  Rienzi  accepted  the  pecorino. A  buyer’s  “resale  of  [goods  is] 
inconsistent with [the seller’s] ‘ownership’ of goods, thus constituting acceptance 

under UCC 2-606(1)(c).” Gem Source Int’l, Ltd. v. Gem-Works N.S., L.L.C., 258 
A.D.2d 373, 374 (1st Dep’t 1999); see also Sunkyong Am., 199 A.D.2d at 100 
(“[D]efendant’s conduct, in reselling the goods to its retail customers, constituted 
acceptance under UCC 2-606(1)(c).”).                                      

 Still, “whether a buyer accepts, rejects or revokes under the N.Y.U.C.C. is not, 
in and of itself, dispositive regarding the buyer’s claim for damages.” United States 
ex rel. Saunders Concrete Co. v. Tri-States Design Constr. Co., 899 F. Supp. 916, 

922 (N.D.N.Y. 1995). The N.Y.U.C.C. specifies that “acceptance does not of itself 
impair any other remedy provided by this Article for non-conformity,” N.Y.U.C.C. 
§ 2-607(2), and stipulates that a “buyer [that] has accepted goods . . . may recover . 
. . damages for any non-conformity of tender,” id. § 2-714(1). Thus, “where the 

accepted goods are claimed to be defective, the buyer ‘may have a claim to recover 
damages for breach of warranties.’” Sec. Chimneys Ltd. v. McDowell, No. 92-CV-
315, 1992 WL 345073, at *3 (N.D.N.Y. Nov. 16, 1992) (quoting Paul Conte Cadillac 

v. C.A.R.S. Purchasing, 126 A.D.2d 621, 623 (2d Dep’t 1987)).             
 Third, Buonatavola asserts that Rienzi may not sue for Buonatavola’s alleged 
breach of the purchase agreement because Rienzi did not allege that it fulfilled its 

obligation under that contract. See Moreno-Godoy, 7 F.4th at 85 (providing that 
“performance by the party seeking recovery” is an essential element of a breach-of-
contract claim under New York law); Comfort Inn Oceanside v. Hertz Corp., 2011 

WL 5238658, at *3 (E.D.N.Y. Nov. 1, 2011) (“A claimant’s failure to plead the 
performance of its own contractual obligations is fatal to a breach of contract claim 
even if the other requisite elements are properly pleaded.”).5 The invoice Rienzi 
submitted stipulates that Rienzi’s payment for the pecorino was due on July 26, 

2016, and Rienzi does not allege that it ever paid the amount due.        
 Rienzi’s failure to pay, however, does not bar its claims because under the 
circumstances alleged in the complaint, Rienzi might not have been under any 

obligation to do so. Rienzi’s acceptance of the pecorino would normally require it to 
pay the contract price. See N.Y.U.C.C. § 2-607(1) (“The buyer must pay at the 
contract rate for any goods accepted.”). Rienzi’s allegation that the pecorino was not 
properly pasteurized, however, raises the possibility that Rienzi could have revoked 

its  acceptance  and  thus  voided  it  payment  obligation.  As  relevant  here,  the 

 5 The parties do not address the issue whether this requirement applies to a 
buyer’s  claim  based  on  the  N.Y.U.C.C.’s  implied  warranty  provisions.  Even 
assuming that it does, however, Rienzi’s alleged lack of performance would not 
justify dismissing its claim for the reasons discussed in this section.   
N.Y.U.C.C. allows a buyer to “revoke his acceptance of a lot or commercial unit 
whose non-conformity substantially impairs its value to him if he has accepted it . . 

. without discovery of such non-conformity if his acceptance was reasonably induced 
either by the difficulty of discovery before acceptance or by the seller's assurances.” 
N.Y.U.C.C. § 2-608(1). To properly revoke acceptance, a buyer “must notif[y] the 

seller”  “within  a  reasonable  time  after  the  buyer  discovers  or  should  have 
discovered” the nonconformity.  Id. § 2-608(2). Rienzi explains that the alleged 
defective nature of the pecorino was difficult to discover because the improperly 
pasteurized cheese did not appear defective until weeks after Rienzi received it. Once 

it discovered that the pecorino was defective, Rienzi alleges, it promptly notified 
Buonatavola and asked Buonatavola to repossess the pecorino. These allegations 
plausibly  demonstrate  that  Rienzi  properly  revoked  its  acceptance.  Therefore, 

Rienzi’s failure to pay does not require me to dismiss its claims.        
 Buonatavola argues that a proper inspection upon the pecorino’s arrival would 
have revealed any of the alleged defects and that Rienzi’s attempted revocation 
months later could therefore not have been “within a reasonable time after [Rienzi] 

. . . should have discovered the [alleged defect].” Id. Yet “[w]hat is a reasonable time 
is dependent on the surrounding circumstances and is a question of fact,” Campbell 
v. Bradco Supply Co., 194 A.D.3d 143, 149 (2d Dep’t 2021), and I cannot conclude 
based on Rienzi’s complaint that its alleged revocation could not plausibly have 
occurred within a reasonable time.                                        

 Buonatavola cites Wilbur-Dolson Silk Co. v. William Wallach Co., 206 A.D. 
470 (1st Dep’t 1923), for the proposition that a failure to discover an allegedly latent 
defect is not an excuse for a buyer’s failure to promptly revoke acceptance. See 

Def.’s  Reply  at  8–9.  In  Wilbur-Dolson,  however,  the  uncontroverted  evidence 
established that the buyer was under a duty to inspect the goods soon after their 
arrival. See id. at 471 (contract contained clause providing that “all shipments to be 
tested by customer, and if unsatisfactory [be] reject[ed] within fifteen days”). In this 

case,  on  the  other  hand,  the  pleadings  and  accompanying  documents  do  not 
unambiguously demonstrate that Rienzi had a duty to inspect the pecorino upon its 
arrival. Buonatavola’s reliance on De Maria v. Renee Operating Corp., 282 A.D. 221 

(1st Dep’t 1953), fares no better. There, the court did not hold that all parties have a 
duty to inspect for latent defects as a matter of law. Rather, the court merely held 
that the “fact that . . . defects are latent should not excuse the supplier if the jury find 
that under all the circumstances a standard of care would have dictated that a duty 

existed to make inspection for the purpose of uncovering such latent defects.” Id. at 
222 (emphasis added)                                                      
 V. Fraudulent Inducement                                             
 Rienzi claims that by promising to arrange for the return of the pecorino and 

failing to follow through, Buonatavola fraudulently induced it to maintain the cheese 
in its “valuable storage space.”  SAC ¶ 173. To state a common-law fraud claim like 
fraudulent inducement, Rienzi must allege “[1] a misrepresentation or a material 

omission of fact which was false and known to be false by the defendant, [2] made 
for the purpose of inducing the other party to rely upon it . . . [3] justifiable reliance 
of the other party . . . and [4] injury.”  Pasternack v. Lab’y Corp. of Am. Holdings, 
27 N.Y.3d 817, 827 (2016); see also Ithaca Cap. Invs. I S.A. v. Trump Panama Hotel 

Mgmt. LLC, 450 F. Supp. 3d 358, 369 (S.D.N.Y. 2020).                      
 Rienzi fails to state a claim for fraudulent inducement. This claim is no more 
than an attempt to repackage some of the damages it contends it is owed for breach 

of contract into a separate cause of action. With respect to breach of contract, Rienzi 
claims that it is entitled to recover for incidental damages including “the receipt, 
transportation, care and custody of the [pecorino] that [Rienzi] rightfully rejected or 
revoked  acceptance  of,”  which  would  encompass  the  storage  costs  sought  as 

damages for the fraudulent inducement claim. SAC ¶ 127; see SAC ¶¶ 172–75. 
Indeed, Rienzi makes the same damage demand for both claims. See SAC ¶¶ 139, 
176. “A fraud claim that arises from the same facts as an accompanying contract 

claim, seeks identical damages and does not allege a breach of any duty collateral to 
or independent of the parties’ agreements is subject to dismissal as redundant of the 
contract claim.”  Marquess v. CardFlex, Inc., 2021 WL 355153, at *4 (E.D.N.Y. Feb. 

2, 2021) (quoting Cronos Grp. Ltd. v. XComIP, LLC, 156 A.D.3d 54, 62–63 (1st 
Dep’t 2017)).                                                             
                      CONCLUSION                                      

 Buonatavola’s motion to dismiss is granted, and Rienzi’s cross-motion for 
leave to amend is denied as futile, as to the causes of action for breach of oral 
agreement and fraudulent inducement. Buonatavola’s motion to dismiss is denied, 
and Rienzi’s cross-motion for leave to amend is granted, as to the causes of action 

for  breach  of  written  agreement  and  breach  of  the  implied  warranty  of 
merchantability. The case is referred to the magistrate for the purpose conducting 
settlement discussions.                                                   


                                    SO ORDERED.                       

Brooklyn, New York                      Edward R. Korman                  
October 28, 2021                        United States District Judge