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United States District Court for the Southern District of New York
August 30, 2005, Decided ; August 31, 2005, Filed
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, District Judge:
In an action for breach of contract and estoppel, 1 plaintiff moved for summary judgment in its favor on its breach of contract claim and dismissing defendant's affirmative defenses in their entirety. Defendant moved for summary judgment dismissing plaintiff's breach of contract claim. The plaintiff's motion is granted and the defendant's motion is denied.
[*2] The gravamen of the complaint is that defendant allegedly breached its sales contract with plaintiff by failing to timely deliver the oil, purchased by plaintiff, to the barge nominated by plaintiff. Plaintiff contends that, in accordance with the buyer's option provision, in the parties' agreement, plaintiff demanded defendant to physically deliver the oil on February 3rd. Plaintiff contends that defendant breached the contract by: (1) anticipatory repudiation in that defendant failed to give plaintiff adequate assurance of its February 3rd performance; and (2) failing to make timely delivery of 75,000 barrels of heating oil on February 3rd or 4th. Defendant, however, maintains that the buyer's option provision did not afford plaintiff the right to select a specific delivery date for the actual physical delivery, and hence defendant did not breach the contract because it timely delivered the oil within the time frame specified in the contract.
The parties are companies who are involved in the purchase and sale of oil products. On January 13, 2000, the parties entered into an agreement whereby defendant sold to plaintiff 100,000 barrels of No. 2 heating oil to be delivered to the [*3] New York Harbor between February 3rd and February 5th. Plaintiff contends, and defendant does not dispute, that plaintiff purchased 3.15 million gallons of home heating oil as there is approximately forty-two gallons of oil in a standard barrel. 2 (Pl.'s Mem. at 11, & n.27).
On January 14th, a confirmation of the terms of the sale was sent by plaintiff's broker to defendant. With respect to the delivery provision, the confirmation states, "LIFTING 3 VIA BUYER'S BARGE FOB [Free on Board] SELLER'S SHORE TANKS NEW YORK HARBOR DURING THE PERIOD FEBRUARY 2-5, 2000." 4 Plaintiff acknowledges that, even when a broker is involved, the common practice, in the oil trade business, is for the seller to issue the operative written contract. On January 17th, defendant sent plaintiff a contract confirming the parties' January 13th transaction. The delivery provision of the contract states:
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2005 U.S. Dist. LEXIS 18688 *; 58 U.C.C. Rep. Serv. 2d (Callaghan) 545
VITOL S.A., INC., Plaintiff, -against- KOCH PETROLEUM GROUP, LP, Defendant.
Disposition: [*1] Plaintiff's motion for summary judgment granted. Defendant's motion for summary judgment denied.
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