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One Step Up, Ltd v. Sam Logistic

May 4, 2011

ONE STEP UP, LTD., PLAINTIFF-RESPONDENT,
v.
SAM LOGISTIC, INC., AND SIMON PANG, DEFENDANTS-APPELLANTS,
AND EXPLORE TRADING, INC., AND JOE ZHANG A/K/A FUMING ZHANG, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-682-08.

The opinion of the court was delivered by: Graves, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 21, 2010

Before Judges Carchman, Graves and Messano.*fn1

The opinion of the court was delivered by GRAVES, J.A.D.

Defendants Sam Logistic, Inc. (Sam), and Simon Pang appeal from a final judgment entered on November 20, 2009, following a one-day bench trial. The court found defendants jointly and severally liable for conversion and awarded plaintiff One Step Up, Ltd., judgment in the amount of $244,584. We affirm.

Plaintiff is an importer and distributor of "off price" apparel goods. Pang is the owner and sole corporate officer of Sam, which owns and operates a public warehouse in Kearny, New Jersey. Explore Trading, Inc. (ETI), a seller of apparel products, stores its merchandise in Sam's warehouse and is owned by Joe Zhang.

Plaintiff and ETI had a business relationship in which all goods plaintiff purchased from ETI were "automatically delivered from the port to [Sam's warehouse]." Thereafter, ETI would notify Sam, usually by letter, of the transfer in ownership to plaintiff, and upon plaintiff's request, Sam would release goods from its warehouse to plaintiff or directly to plaintiff's customers. According to Abraham Sultan, one of plaintiff's employees, the parties had passed "thousands" of cartons worth "millions" of dollars through Sam's warehouse in this fashion.

Sultan further testified that during their "two years of dealing," there was never an issue regarding the release of goods from Sam's warehouse to plaintiff, and Sam never required authorization from ETI to release merchandise.

On December 20, 2007, plaintiff purchased $671,258 worth of merchandise (the goods) from ETI. At that time, ETI provided plaintiff with a signed letter that stated:

As of today, the goods listed on the attached packing list are sold to One Step Up. One Step Up will pick up the goods as soon as possible. Sam [Logistic] will not charge handling fees . . . to One Step Up. . . . [A]lthough owned by OSU [these goods] will be under [ETI's account] until removed from Sam Logistic.

Plaintiff immediately faxed the letter to Sam, and on December 20 and 28, 2007, Sam released a portion of the goods worth $70,408 to plaintiff. According to Sultan, Sam released the goods pursuant to a "verbal agreement" that followed receipt of the letter from plaintiff. By contrast, Pang testified that the goods were released only "upon the signature of Mr. [Zhang]."

On January 16, 2008, plaintiff requested that Sam release additional goods purchased from ETI, but Sam refused. When Sultan sought an explanation, Pang told him to contact ETI. Sultan testified he called Zhang and was told that "Sam should be delivering the goods." Nevertheless, Sam refused to do so, despite receiving another copy of the December 20, 2007 letter.

According to Pang, he did not release the goods to plaintiff because he never received a signed release from ETI. However, he admitted knowing that the goods sought by plaintiff had actually been sold by ETI to other parties. Pang also testified he believed the transfer from ETI to plaintiff had been cancelled, and ETI had refunded plaintiff's payment.

On January 28, 2008, plaintiff's counsel wrote a letter to Pang stating: "The goods must be released at once. Please immediately advise your consent." The letter also indicated that Sam's "continued refusal to release the goods to One Step Up, Ltd. [was] evidence of [its] continued bad faith." Pang responded the same day, stating that the goods requested by plaintiff were owned by ETI and would only be released with ETI's written consent.

Thereafter, plaintiff discovered that the goods had been removed from Sam's warehouse. At trial, Pang admitted that Sam had released the goods to other buyers on ETI's orders prior to January 28, 2008, notwithstanding the ...


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