WOOD v. WILLIAM CARTER COMPANY (2000)

Order, Supreme Court, New York County (Elliott Wilk, J.), entered January 14, 2000, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

 Initially, we find that defendant cannot be held liable under the doctrine of actual authority as there is no dispute that Winters was not an employee of defendant (see, Greene v. Hellman, 51 N.Y.2d 197, 433 N.Y.S.2d 75, 412 N.E.2d 1301;  Ben-Reuven v. Kidder, Peabody & Co., 241 A.D.2d 504, 661 N.Y.S.2d 28).

 Nor do we find any support in the record for a determination that Winters had apparent authority to act on behalf of defendant.  “ ‘Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction’ ” (Standard Funding Corp. v. Lewitt, 89 N.Y.2d 546, 551, 656 N.Y.S.2d 188, 678 N.E.2d 874, quoting Hallock v. State of New York, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [emphasis supplied in original];  see also, Fleet Credit Corp. v. Cabin Service Co., 192 A.D.2d 421, 424, 596 N.Y.S.2d 801;  Federal Ins. Co. v. Diamond Kamvakis & Co., 144 A.D.2d 42, 45, 536 N.Y.S.2d 760, lv. denied 74 N.Y.2d 604, 543 N.Y.S.2d 397, 541 N.E.2d 426), and the alleged agent cannot, by his own acts, imbue himself with such authority (Hallock v. State of New York, supra, at 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178;  Ford v. Unity Hosp., 32 N.Y.2d 464, 473, 346 N.Y.S.2d 238, 299 N.E.2d 659;  Shaw Temple A.M.E. Zion Church v. Mount Vernon Fire Ins. Co., 199 A.D.2d 374, 376, 605 N.Y.S.2d 370).

In this matter, there is no evidence that defendant knew of, or consented to, Winters' assumption of the role of doorman, as he wore no uniform or other manifestation of authority.   The record is also devoid of any indication that defendant-principal, through words or conduct, communicated to a third party that Winters possessed the authority to act on its behalf.

Finally, we note that the motion court's reliance on Riviello v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278, is misplaced as that case concerned the issue of whether an employee's actions fell within the scope of his/her employment and does not address, in any manner, whether a non-employee is cloaked with apparent authority.

MEMORANDUM DECISION.