ATLANTIC SPECIALTY INSURANCE COMPANY v. Cheryl Kremenick, Defendant. (2025)

Order, Supreme Court, New York County (Andrew Borrok, J.), entered October 5, 2023, which, to the extent appealed from, granted plaintiff's motion for summary judgment on all causes of action in the complaint, unanimously modified, on the law, to deny the motion as to defendants Lynn R. Calvano, Katherine L. Lettera, and Heather K. Calvano, and otherwise affirmed, without costs.

We reject defendants' argument that plaintiff's motion, in which it contends that the indemnity agreement associated with the bond was executed by defendants' accountant acting as their agent, is barred by judicial estoppel.  In prior motion practice, plaintiff argued that defendants' signatures were presumptively valid because they were notarized (see Atlantic Specialty Ins. Co. v. Landmark Unlimited, Inc., 214 A.D.3d 472, 472–473, 186 N.Y.S.3d 14 [1st Dept. 2023]).  Because defendants asserted that the signatures were forgeries, plaintiff now argues that the agreement was signed by an agent.  These positions are consistent with each other, and the gravamen of plaintiff's action has always been that the agreement was validly executed and enforceable (see Bergman v. Indemnity Ins. Co. of N. Am., 275 A.D.2d 675, 676, 713 N.Y.S.2d 531 [1st Dept. 2000];  Kerby Saunders–Warkol, Inc. v. Macklowe Real Estate Co., 167 A.D.2d 176, 177, 561 N.Y.S.2d 717 [1st Dept. 1990]).

Plaintiff established entitlement to summary judgment with respect to defendants Joseph Calvano and the Landmark entities.  Although Joseph, president of the Landmark entities, denied signing the indemnity agreement, he did not deny giving the accountant authority to do so, leaving that evidence of actual authority unrebutted.  In any event, even if Joseph had denied giving such authority, the record contains sufficient evidence to find that Joseph, and by extension Landmark, ratified the agreement (see Goldston v. Bandwidth Tech. Corp., 52 A.D.3d 360, 363–364, 859 N.Y.S.2d 651 [1st Dept. 2008], lv denied 14 N.Y.3d 703, 2010 WL 547639 [2010];  Cologne Life Reins. Co. v. Zurich Reins. [N. Am.], Inc., 286 A.D.2d 118, 126–128, 730 N.Y.S.2d 61 [1st Dept. 2001]).  It was Joseph who instructed the accountant and Landmark's administrative assistant to obtain the surety bond, which was necessary to obtain a contract Joseph was seeking on behalf of Landmark.  He was a party to numerous emails over the years concerning the provision of financial information to the surety broker, urging his employees to comply so that the bond would be obtained.  He paid for the bond after its approval, and Landmark accepted the benefit of being awarded the contract that was contingent on the bond.  There is no question on this record that Joseph had full knowledge of the material facts relating to the transaction and that his assent was unequivocal (see Robinson v. Day, 103 A.D.3d 584, 586, 960 N.Y.S.2d 397 [1st Dept. 2013];  compare Goldston, 52 A.D.3d at 364, 859 N.Y.S.2d 651;  with Cashel v. Cashel, 15 N.Y.3d 794, 796, 908 N.Y.S.2d 143, 934 N.E.2d 876 [2010]).

However, the record presents issues of fact as to whether the accountant for Lynn R. Calvano, Katherine L. Lettera, and Heather K. Calvano had either actual or implied authority to sign their names on a personal indemnity guarantee (see Cologne Life Reinsurance Co., 286 A.D.2d at 124–128, 730 N.Y.S.2d 61).  Thus, it is for the factfinder to resolve the credibility of those parties as well as that of the accountant, who provided an affidavit averring that Lynn Calvano and Joseph Calvano directed him to sign the agreements on behalf of all the appealing defendants.