Empire Provisions Corp. v. Ostervold Packing Co.

CASE-FILE DOCUMENT · SUPPLY AGREEMENT AND POS

Exhibit m17.exh.001 — Master Supply Agreement and Purchase Orders

Parties: Empire Provisions Corp. ("Buyer") and Ostervold Packing Co. ("Seller") Agreement date: May 15, 2025 Term: 2025 packing season; six (6) truckload releases by individual Purchase Order

1. Goods

Seller shall pack and deliver Buyer's private-label specialty-food line, consisting of jarred sauces, packaged grains, and bottled olive-oil products, in the quantities and configurations stated on each Purchase Order. Each truckload release is priced at approximately $48,000, confirmed on the applicable Purchase Order.

2. Product specifications

Each unit delivered under this Agreement shall conform to the following specifications:

• (a) Net weight. The declared net weight on each unit label shall be accurate to the unit's actual filled weight within the tolerance stated on the approved artwork.
• (b) Allergen and ingredient statement. Each unit label shall bear a complete and accurate allergen and ingredient statement that matches, word for word, the artwork proof approved in writing by Buyer before the run.
• (c) Date coding. Each unit shall bear a printed "best by" date code in the format and location shown on the approved artwork.
• (d) Minimum remaining shelf life. Each case shall arrive at Buyer's dock with not less than nine (9) months remaining before its printed "best by" date.
• (e) Packaging integrity. Cases and units shall arrive intact, sealed, and free of crushing, leakage, or seal failure.

3. Inspection and rejection

Buyer may inspect goods on receipt and may reject any goods that fail to conform to the specifications in Section 2. Buyer shall act promptly in inspecting and in giving any notice of rejection. Rejected goods shall be held for Seller's account and disposition. (No fixed number of days for rejection is stated in this Agreement.)

4. Cure

If Buyer rejects a delivery as nonconforming, Seller may cure the nonconformity within a reasonable time by picking up, correcting, replacing, or redelivering conforming goods, at Seller's expense.

5. Payment

Buyer shall pay each conforming release within thirty (30) days of delivery and acceptance.

Purchase Order schedule (as released)

Signatures: Marisol Beltran, Procurement Director, Empire Provisions Corp. / Roland Ostervold, President, Ostervold Packing Co.

Artwork proofs for each SKU are approved under separate written proof-approval forms referenced in the file.

CASE-FILE DOCUMENT · RECEIVING INSPECTION AND REJECTION NOTICES

Exhibit m17.exh.002 — Empire Receiving Inspection Reports and Rejection Notices

Source: Empire Provisions Corp. warehouse, Newburgh, NY — receiving log and rejection files Custodian: Tobias Renfrew, Warehouse & Receiving Manager

Receiving log — 2025 season

Rejection Notice 2025-11 (Load B)

Date: September 5, 2025 Re: PO EPC-2025-052, Load B, jarred sauces On inspection, the case labels omit the "CONTAINS: TREE NUTS" allergen line that appears on the artwork proof Empire approved for this SKU. This is a labeling nonconformity. Empire rejects the entire load. Goods are segregated in bonded holding, Bay 4, and held for your account and pickup instructions. — T. Renfrew

Rejection Notice 2025-14 (Load C)

Date: September 30, 2025 Re: PO EPC-2025-058, Load C, packaged grains The "best by" date codes on this load read approximately five months from today. Our specification requires at least nine months of remaining shelf life on delivery. Empire rejects the entire load as short-dated. Goods held in Bay 4 for your account. Internal note (Renfrew): This load came in on Sept 22 but wasn't fully checked until this week — the dock was buried during the peak-week rush and it sat on the floor for about eight days before we opened and coded it. — T. Renfrew

Rejection Notice 2025-16 (Load D)

Date: October 8, 2025 Re: PO EPC-2025-063, Load D, mixed sauces and olive oil This mixed load is inconsistent SKU to SKU. Some sauce cases repeat the missing tree-nut allergen line; some olive-oil cases are short-dated (roughly six months). Some cases appear to conform. Empire rejects all cases remaining in our possession as of today. Internal note (Renfrew): Procurement (M. Beltran) released roughly a third of the pallets on Oct 6 to cover the Halvorsen Markets outbound order before we finished coding the load. Those pallets are already gone. This notice covers what's still on our floor. — T. Renfrew

CASE-FILE DOCUMENT · LABEL PHOTO EXHIBITS

Exhibit m17.exh.003 — Label and Date-Code Photo Exhibits (Described)

The following photographs were taken by Empire's receiving staff during inspection and are held in the matter file. Each is described here for the record; the images themselves are in the exhibit binder.

Photo 3-A — Load B sauce case label vs. approved proof (side by side). Left: the approved artwork proof for the private-label sauce SKU, showing the allergen block "CONTAINS: MILK, TREE NUTS." Right: an as-delivered Load B case label showing only "CONTAINS: MILK." The tree-nut line is absent from the delivered label. Net weight and ingredient list otherwise match.

Photo 3-B — Load C date-code closeup. A packaged-grain unit from Load C. The stamped code reads a "best by" date approximately five months after the September 22, 2025 delivery. A ruler and the receiving-dock calendar are visible in frame for date reference.

Photo 3-C — Load C pallet on the receiving floor. Wide shot of Load C pallets shrink-wrapped and staged in the receiving area, still banded, taken September 30, 2025. Empire's floor-tag shows a received date of September 22, 2025 — documenting the interval between receipt and inspection.

Photo 3-D — Load D mixed cases. Three cases from Load D photographed together: one sauce case repeating the missing tree-nut allergen line (as in Photo 3-A); one olive-oil case with a short "best by" code (~six months); and one sauce case whose label matches the approved proof and whose date code is within spec — illustrating that Load D was not uniform.

Photo 3-E — Bonded-holding segregation, Bay 4. Rejected Loads B and C segregated and tagged "HOLD — SELLER ACCOUNT" in Empire's Bay 4, photographed October 1, 2025.

Photo 3-F — Empty pallet positions, Load D. The outbound staging lane on October 6, 2025 showing the Load D pallets that were released to the downstream customer order before inspection was complete (cross-references the resale records, Exhibit m17.exh.008).

CASE-FILE DOCUMENT · CONSULTANT INSPECTION REPORT

Exhibit m17.exh.004 — Independent Food-Labeling Consultant Inspection Report

Prepared by: Priyanka Sengupta, food-labeling and safety consultant Retained by: Ellingboe & Ravndal LLP, counsel for Empire Provisions Corp. Sample inspection date: April 14, 2026 Samples examined: Retained units from Loads B, C, and D held in Empire's bonded holding

Scope

I was asked to examine retained sample units from the three disputed loads against the approved artwork proofs and the written specifications, and to state whether the delivered units conformed as to (1) allergen labeling and (2) remaining shelf life. I was not asked to opine on any legal question. My findings are limited to what the physical samples and the proofs show.

Findings — allergen labeling

The approved artwork proof for the private-label jarred-sauce SKU carries the allergen declaration "CONTAINS: MILK, TREE NUTS." The retained Load B sauce units and a subset of the Load D sauce units carry the declaration "CONTAINS: MILK" only; the "TREE NUTS" element is absent. This is a labeling nonconformity against the approved proof. Because the product formula includes a tree-nut-derived ingredient, the omission is also a food-safety concern, not merely a cosmetic one.

Net weight declarations and ingredient lists on the same units were accurate and matched the proofs.

Findings — remaining shelf life

The Load C packaged-grain units bear "best by" codes that, measured against the documented delivery date of September 22, 2025, reflect under six months of remaining shelf life. The specification requires at least nine months on delivery. On the physical evidence, Load C did not meet the minimum-shelf-life specification on the delivery date.

I cannot determine from the units alone why the shelf life was short — that is, whether the units were produced late (reducing shelf life at the source) or produced on time but delivered after a transit and holding interval that consumed part of the printed window. Resolving that question requires the production and shipping records, not the labels.

Findings — Load D mixed

The retained Load D units are not uniform. Some sauce units repeat the allergen nonconformity above; some olive-oil units are short-dated; and some units match their proofs and specifications. Load D cannot be characterized as uniformly conforming or uniformly nonconforming.

P. Sengupta

CASE-FILE DOCUMENT · REJECTION AND DEMAND CORRESPONDENCE

Exhibit m17.exh.005 — Rejection, Cure-Offer, and Demand Correspondence

Chronological correspondence between the parties. Reproduced from the matter file.

Letter 1 — Ostervold to Empire (October 15, 2025)

Marisol, We received your rejection notices on Loads B, C, and D and we disagree with all three. The sauce labels were run from the artwork your office approved and signed off on before the run; if there is a proof discrepancy, it originated on the proof we were given. The grain dates on Load C are within our normal production tolerance, and part of any date question is that your dock held that load for more than a week before anyone looked at it. That said, we want to keep this relationship and we stand behind our work. We offer to cure. Our carrier will pick up all rejected units from your Bay 4, and within three weeks we will relabel or replace them and redeliver conforming goods at our expense. Please give us pickup windows this week. — Roland Ostervold, President, Ostervold Packing Co.

Letter 2 — Empire to Ostervold (October 20, 2025)

Roland, We appreciate the offer but we are declining it. After three loads with labeling and dating problems in a row, we have lost confidence in the line's quality control, and we have already sourced replacement product from another packer to keep our customers supplied. We are not in a position to wait three more weeks and re-inspect a fourth time. Please arrange to retrieve the rejected goods from Bay 4. We will not be paying the invoices on Loads B, C, and D. — Marisol Beltran, Procurement Director, Empire Provisions Corp.

Letter 3 — Ostervold to Empire (December 1, 2025)

Marisol, This is a formal demand for payment of $147,150 for Loads B, C, and D, per PO EPC-2025-052, -058, and -063. The goods conformed, your rejections were not prompt, and we have learned that Empire resold part of Load D to a downstream customer rather than holding it for us. Having accepted and resold goods, Empire owes the price. If we do not receive payment within twenty days we will pursue our remedies, including suit for the contract price. — Roland Ostervold, President, Ostervold Packing Co.

Filing notice (February 10, 2026)

Ostervold Packing Co. filed a Summons and Complaint against Empire Provisions Corp. in the Supreme Court of the State of New York, Commercial Division, Westchester County, seeking the contract price of $147,150 plus interest and costs. The Complaint pleads that the goods conformed, that Empire's rejections were untimely, and that Empire accepted and resold part of the goods.

CASE-FILE DOCUMENT · OSTERVOLD PRODUCTION SHIPPING RECORDS

Exhibit m17.exh.006 — Ostervold Production and Shipping Records (Excerpts)

Source: Ostervold Packing Co. production and shipping files, produced in discovery Custodian: Curtis Ferraro, Plant QA Manager

Lot and production summary

Labeling-line note (internal, Load B / Load D sauce stock)

QA log, Aug 28, 2025: "Sauce line switched to the updated allergen template midweek. First part of the B run may have printed on the prior template. Flagging for verification before ship." (No verification sign-off is recorded in the file.)

Shelf-life / date-code note (Load C)

Production note, Sep 17, 2025: "Grain run for -058 pushed roughly a week behind schedule due to backlog. Date codes calculated from actual production date." (Because production slipped about a week and the standard code window is fixed from production, the printed 'best by' dates are correspondingly nearer than a run produced on schedule.)

Shipping note (Loads B and C pickup)

Logistics note, October 2025: "Buyer rejected B and C. Return pickup of rejected units from buyer's Bay 4 scheduled with carrier." (Cross-reference carrier records, Exhibit m17.exh.007.)

These excerpts are Ostervold's own records. They are included in the file because they bear on two contested questions: whether at least one lot ran on an outdated allergen template, and whether Load C's short dating originated at production rather than in transit.

CASE-FILE DOCUMENT · CARRIER DELIVERY RECORDS

Exhibit m17.exh.007 — Carrier Delivery and Pickup Records

Source: Empire Provisions freight file; carrier dispatch and proof-of-delivery records Custodian / witness: Yosef Mizrahi, freight broker

Delivery record

Rejected-goods pickup record

Broker note

All four inbound loads moved on refrigerated-optional dry vans; these are shelf-stable goods and no cold-chain excursion was flagged on any run. Transit times were short and unremarkable — one to two days dock to dock. The interval that matters for Load C is not the transit; it is the gap between the September 22 delivery and the buyer's inspection about a week later. On the return legs, our carrier retrieved the rejected units from Empire's Bay 4 on October 24 and returned them to Ostervold's plant. — Y. Mizrahi

These records are relevant because Ostervold blames the short shelf life partly on transit. The transit times were only one to two days, which bears on whether the shelf-life problem originated at production or on the road.

CASE-FILE DOCUMENT · EMPIRE RESALE INVENTORY RECORDS

Exhibit m17.exh.008 — Empire Inventory and Resale Records (Load D)

Source: Empire Provisions Corp. warehouse-management system export and outbound shipping records

Load D disposition (as recorded in Empire's system)

Load D arrived October 6, 2025 (PO EPC-2025-063). Empire's inbound record shows the load was not fully receipt-inspected before a portion was moved to outbound.

Outbound shipment SO-2025-0912 (Halvorsen Markets)

Customer: Halvorsen Markets (downstream grocery account) Contents: private-label sauces and olive oil, including pallets drawn from Load D Shipped: October 6, 2025 Status: Delivered and invoiced to customer; sold. Not returned. Authorization note: "Release to cover standing Halvorsen order — M. Beltran, 10/6." (These pallets were shipped before Load D inspection was complete.)

Inventory reconciliation note

The Bay 4 hold count for Load D reconciles to the returned-goods count Ostervold's carrier retrieved on October 24, 2025, less the ~12 pallets released on SO-2025-0912. Empire's system shows those released pallets as sold-through, not as returned inventory.

This record is included because Ostervold's price claim relies in part on the allegation that Empire accepted and resold Load D goods. Empire's own records confirm that roughly a third of Load D was shipped to a customer and sold before the load was fully inspected or rejected. How that partial resale interacts with the rejection of the remainder is a central question in the matter.

WITNESS STATEMENT · STATEMENT RENFREW

Witness Statement — Tobias Renfrew

Witness id: m17.wit.renfrew Role: Warehouse & Receiving Manager, Empire Provisions Corp. Taken: April 2026

I run receiving at Empire's Newburgh warehouse. Every inbound load comes across my dock, and I sign the proof of delivery and log it in. When the load is one of our private-label runs, I inspect against the spec sheet and the approved artwork proof before we accept it.

Load A came in back in August and it was fine. Clean labels, good dates, we accepted it and it got paid. So it's not like we were looking to reject Ostervold — the first load was no trouble at all.

Load B came in September third. I pulled a case and the allergen block just said "Contains: Milk." Our approved proof for that sauce says "Contains: Milk, Tree Nuts." That's not a small thing — that's the kind of miss that gets a product recalled and gets somebody sick. I rejected the whole load the same day, wrote it up, and we segregated it in Bay 4 for their account.

Load C is the one I'll be straight about. It was delivered September twenty-second, but I didn't get it fully checked until the thirtieth. That last week of September we were absolutely buried — short-staffed, trucks stacked up, product all over the floor. That load sat banded on the receiving floor for about eight days before I got to it. When I did open it and read the date codes, the "best by" was only about five months out, and our spec says nine. So I rejected it as short-dated. I know eight days is longer than I'd like; I own that. It's in my log.

Load D was a mess of a load — mixed sauces and olive oil, and it was inconsistent case to case. Some sauce cases had the same missing tree-nut line, some olive-oil cases were short-dated, and honestly some cases looked fine. I rejected what was still on my floor on October eighth. I'll note that before I got to inspect it, procurement had already pulled some of the pallets off it to fill a customer order — that was a call from Marisol Beltran's side, not mine. Those pallets were gone before I finished coding the load.

I kept the receiving logs, the rejection notices, and the photos. They all say the same thing the dates say.

Signed, Tobias Renfrew.

WITNESS STATEMENT · STATEMENT SENGUPTA

Witness Statement — Priyanka Sengupta

Witness id: m17.wit.sengupta Role: Independent food-labeling and safety consultant (retained by Empire's counsel) Taken: April 2026

I was retained to examine retained sample units from three disputed loads and compare them to the approved artwork proofs and the written specifications. I looked at the physical units, the proofs, and the spec sheet. I did not look at the contract's legal terms and I offer no legal opinion — I report what the samples show.

On the allergen question, the finding is clear. The approved proof for the sauce SKU declares "Contains: Milk, Tree Nuts." The Load B sauce units, and some of the Load D sauce units, declare only "Contains: Milk." The tree-nut declaration is missing. Because the product actually contains a tree-nut-derived ingredient, that omission is a real food-safety issue, not a cosmetic typo. If those units reached a consumer with a tree-nut allergy, the label would not warn them. That is exactly the kind of defect a distributor cannot let out the door.

On shelf life, the Load C grain units carried "best by" codes reflecting under six months of remaining life measured from the September twenty-second delivery date. The specification calls for at least nine months on delivery. So on the physical evidence, Load C did not meet the shelf-life spec when it arrived.

What I cannot tell you from the units alone is why the shelf life was short. A short window can come from producing the goods late — which shortens the life at the source — or from producing them on time but then delivering after enough time on the road and in a warehouse that part of the window is gone. The label can't distinguish those. You'd need the production dates and the shipping records to sort that out. My understanding is that those records exist in this case.

The Load D samples were not uniform — some units repeated the allergen problem, some were short-dated, and some conformed. I would not describe Load D as either all-good or all-bad.

Signed, Priyanka Sengupta.

WITNESS STATEMENT · STATEMENT FERRARO

Witness Statement — Curtis Ferraro

Witness id: m17.wit.ferraro Role: Plant QA Manager, Ostervold Packing Co. Taken: May 2026 (via Ostervold's counsel)

I manage quality assurance at Ostervold's plant. I keep the production logs, the lot codes, and the shipping records for every run we do. I've been here eleven years and I stand behind our work.

On the sauce labels: we run our labels off the artwork the customer approves. Empire's office signed off on the proofs before we started. If there's a discrepancy between what shipped and what they say they wanted, my first question is which proof we were actually given. I'll acknowledge that we switched our sauce line to an updated allergen template partway through that season. My log for the last week of August flags that the first part of the Load B run may have printed on the older template, and I noted it should be verified before shipment. I can't point you to a sign-off showing that verification happened. I'm not going to pretend the note isn't there.

On Load C, the grains: yes, that run slipped. We had a backlog that pushed the run about a week behind schedule. Our date codes are calculated from the actual production date, so if production runs late, the "best by" date is correspondingly nearer. That's just arithmetic. What I'd add is that Empire held that load on their dock for something like a week before they even looked at it, and shelf life doesn't stop running because a load is sitting on somebody's floor. So part of what they're calling short-dating is time they let run off the clock themselves.

On Load D — I understand some of those pallets never came back to us. We were told Empire moved them to one of their own customers. If they sold the goods, that's not consistent with rejecting them, at least the way I see it. But I handle QA, not the legal side.

We offered to pick everything up and make it right within three weeks. They said no. That's on the record too.

Signed, Curtis Ferraro.

WITNESS STATEMENT · STATEMENT MIZRAHI

Witness Statement — Yosef Mizrahi

Witness id: m17.wit.mizrahi Role: Freight broker (arranged carriage between Ostervold and Empire) Taken: May 2026

I brokered the freight on all four of these loads between Ostervold's plant and Empire's warehouse. I keep the dispatch records and the proofs of delivery, and I've pulled them for this matter.

The runs were short and clean. These are shelf-stable packaged goods — sauces, grains, olive oil — so they don't need a cold chain, and nothing on any of the four loads flagged a temperature excursion or a delay in transit. Dock to dock, we're talking one to two days on each load. Load A was about a day, Load B about a day, Loads C and D about two days each. Those are normal, uneventful transit times.

I mention that because I understand the seller is saying the short dates on Load C came partly from time in transit. Looking at my records, that doesn't hold up as a transit story — two days on the road doesn't eat months off a shelf-life window. If Load C came in with only about five months on it, that window was already short when it left the plant, or it got short sitting somewhere after delivery — but it wasn't my trucks. The gap that stands out in my paperwork on Load C is the one on the receiving end: it was delivered on the twenty-second and, as I understand it, wasn't inspected for about a week.

On the way back, our carrier picked up the rejected units from Empire's Bay 4 on October twenty-fourth and hauled them back to Ostervold's plant. I've got the return PODs for Loads B and C and the remainder of D.

Signed, Yosef Mizrahi.

BUSINESS EXHIBIT · ENGAGEMENT LETTER

Engagement Letter

Ellingboe & Ravndal LLP 310 Riverwalk Plaza, Suite 400, Norsholm, Meridian 55901

March 9, 2026

Ms. Marisol Beltran Procurement Director Empire Provisions Corp. 1400 Riverfront Way Newburgh, New York 12550

Re: Empire Provisions Corp. v. Ostervold Packing Co. — Defense of price action (Supreme Court of the State of New York, Commercial Division, Westchester County)

Dear Ms. Beltran:

Thank you for returning to Ellingboe & Ravndal LLP. This letter confirms the terms on which the firm will represent Empire Provisions Corp. ("Empire" or "you") in connection with the lawsuit brought by Ostervold Packing Co. seeking the contract price for three truckloads of packaged goods that Empire rejected.

Scope of engagement. We will represent Empire as defendant in the above action. Our work includes answering the complaint, developing the facts, conducting discovery, analyzing Empire's rejection and warranty defenses and Ostervold's price claim, counseling you on strategy and settlement, and, if the matter does not resolve, motion practice and preparation through trial. Any appeal, or any separate claim against a third party, would be the subject of a separate agreement.

Fees. This is an hourly engagement. Our current rates are $250 per hour for Amara Ellingboe (senior attorney), $225 per hour for Marcus Ravndal (associate attorney), and $120 per hour for paralegal time. We will staff the matter to be efficient, assigning work to the lowest-cost timekeeper suited to it. Rates may be adjusted on written notice, no more than once per year.

Costs. You are responsible for out-of-pocket costs we advance — filing and court fees, transcript and deposition costs, the retained labeling consultant's fees, copying, and similar expenses. These appear as itemized expenses on your statements.

Billing. We bill monthly. Statements itemize the timekeeper, date, time in tenth-of-an-hour increments, and a narrative, along with any costs. Payment is due within thirty days.

Your role. You agree to provide complete and accurate information, preserve relevant records (including the receiving, procurement, and inventory files), and remain reasonably available. Candor with us — including about facts that may not help Empire — lets us give you sound advice.

No guarantee. We cannot and do not guarantee any particular outcome.

If these terms are acceptable, please sign below and return one copy. We appreciate the opportunity to represent Empire.

Sincerely,

Amara Ellingboe Ellingboe & Ravndal LLP

Agreed and accepted:

Marisol Beltran, for Empire Provisions Corp. Date: ____________

BUSINESS EXHIBIT · INTAKE & CONFLICTS

Intake (2026-03-06). New York specialty-food distributor sued by its contract packer, Ostervold Packing Co., in the Supreme Court of the State of New York, Commercial Division, for the contract price (about $147,000) of three truckloads of packaged goods that Empire rejected as mislabeled and short-dated. UCC Article 2 dispute over conformity, rightful and timely rejection, acceptance (including a partial resale of one load), the seller's cure offer, and the seller's price-versus-damages remedy. Firm represents Empire as buyer's counsel and defendant.

Conflicts check (2026-03-07) — CLEAR. No current or former representation of Ostervold Packing Co., Roland Ostervold, or Halvorsen Markets. Empire is a returning client (prior closed matter m27); no positional conflict identified. Retained consultant Sengupta and freight broker Mizrahi are Empire-side witnesses, not adverse.

BUSINESS EXHIBIT · BILLING STATEMENT (29 TIME ENTRIES)

BUSINESS EXHIBIT · INVOICES