Hampton Hall Pty Ltd., Plaintiff-Appellant, v. LLP (2011)

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Order, Supreme Court, New York County (Charles E. Ramos, J.), entered November 25, 2009, which, to the extent appealed from, granted defendant Rick, Steiner, Fell & Benowitz LLP's (RSF & B) motion for summary judgment dismissing the complaint against it, unanimously affirmed, with costs.

This appeal arises out of an escrow agreement entered into by plaintiff and defendant Jay Rick. Since RSF & B was not a signatory to the escrow agreement, no cause of action for breach of contract can be asserted against it (see Balk v. 125 W. 92 nd St. Corp., 24 AD3d 193, 193 [2005] ).   The documentary evidence establishes that Rick entered into the escrow agreement in his individual capacity and that RSF & B is, thus, not liable to plaintiff (see Schuckman v. Sayville Plaza Dev. Co., 201 A.D.2d 638 [1994] ).   The “whereas” clause in the agreement stating that

“[plaintiff] has assigned as Escrow Agent, Jay Rick, a member of [RSF & B],” was descriptive and did not bind RSF & B (see generally Grand Manor Health Related Facility, Inc. v Hamilton Equities Inc., 65 AD3d 445, 447 [2009] ).

Plaintiff failed to establish the existence of Rick's apparent authority to bind RSF & B. There is no evidence of any misrepresentations by RSF & B or reliance thereon (see Ford v. Unity Hosp., 32 N.Y.2d 464, 473 [1973] ).   Plaintiff also failed to establish that RSF & B was vicariously liable for Rick's acts.   Plaintiff was not a client of the law firm, nor had it entered into a fee arrangement or any other agreement with the law firm.   Thus, Rick was not acting within the ordinary course of the business of the firm, or engaging in authorized conduct (compare Clients' Sec. Fund of State of N.Y. v Grandeau, 72 N.Y.2d 62 [1988] ).

Plaintiff has failed to show “that facts essential to justify opposition may exist” (CPLR 3212[f] ).  Accordingly, summary judgment is not premature (see Moukarzel v. Montefiore Med. Ctr., 235 A.D.2d 239, 240 [1997] ).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK