SONG v. MGM DEVELOPMENT LLC (2006)

 Plaintiffs commenced this action to recover damages arising from defendants' allegedly defective construction of their home.   Supreme Court properly denied plaintiffs' motion seeking summary judgment on the first cause of action, alleging breach of the Limited Warranty by defendants, and the second cause of action, alleging breach of the Letter Agreement by defendant Michael G. Millner.   In support of their motion, plaintiffs submitted a conclusory affidavit of plaintiff Kwangjin Song (see JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 385, 795 N.Y.S.2d 502, 828 N.E.2d 604) and the unsworn reports of various professionals who inspected their home (see Washington v. City of Yonkers, 293 A.D.2d 741, 742, 742 N.Y.S.2d 316), and plaintiffs therefore failed to establish their entitlement to judgment as a matter of law with respect to the first and second causes of action (see JMD Holding Corp., 4 N.Y.3d at 384-385, 795 N.Y.S.2d 502, 828 N.E.2d 604).

 The court erred, however, in granting that part of defendants' cross motion seeking summary judgment dismissing the complaint against Millner.   Defendants failed to meet their initial burden of establishing that Millner executed the Limited Warranty and Letter Agreement in his capacity as president of defendant MGM Development, LLC (MGM) (cf. Weinreb v. Stinchfield, 19 A.D.3d 482, 483, 797 N.Y.S.2d 521;  Holzer Assoc. v. Orta, 250 A.D.2d 737, 672 N.Y.S.2d 915).   Neither document indicates that Millner was acting as an agent for MGM or, indeed, that MGM is a corporation (see Continental Manor II Condominium Homeowners Assn. v. Depew, 277 A.D.2d 340, 717 N.Y.S.2d 206;  New England Mar. Contrs. v. Martin, 156 A.D.2d 804, 805, 549 N.Y.S.2d 535).   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion in its entirety and reinstating the complaint against defendant Michael G. Millner and as modified the order is affirmed without costs.

MEMORANDUM: