CANANDAIGUA NATIONAL BANK AND TRUST COMPANY v. ACQUEST SOUTH PARK LLC (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is denied in its entirety, and the first cross claim of defendant-third-party plaintiff is reinstated against third-party defendant.

Memorandum:  Defendant-third-party plaintiff, Kingsbury Corporation (Kingsbury), appeals from an order insofar as it granted that part of the motion of third-party defendant, William L. Huntress, seeking summary judgment dismissing Kingsbury's first cross claim, for wrongful eviction under RPAPL 853, against him.  Insofar as the order is appealed from, we reverse.

The sole contention raised by Huntress in support of his motion with respect to the first cross claim was that he could not be personally liable inasmuch as he was acting as an agent of a disclosed principal.  We conclude that Huntress failed to establish his entitlement to judgment as a matter of law with respect to that cross claim and, as a result, the burden never shifted to Kingsbury to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).

“It is well established that ‘[a] corporate officer may be held personally liable for a tort of the corporation if he or she committed or participated in its commission, whether or not his or her acts are also by or for the corporation’ ” (Villafrank v. David N. Ross, Inc., 120 A.D.3d 935, 938, 991 N.Y.S.2d 823 [4th Dept. 2014];  see Retropolis, Inc. v. 14th St. Dev. LLC, 17 A.D.3d 209, 211, 797 N.Y.S.2d 1 [1st Dept. 2005] ).  A cause of action under RPAPL 853 sounds in tort (see Gold v. Schuster, 264 A.D.2d 547, 549, 694 N.Y.S.2d 646 [1st Dept. 1999];  Kolomensky v. Wiener, 135 A.D.2d 505, 507, 522 N.Y.S.2d 156 [2d Dept. 1987], lv denied in part and dismissed in part 72 N.Y.2d 873, 532 N.Y.S.2d 365, 528 N.E.2d 517 [1988];  Chapman v. Johnson, 39 A.D.2d 629, 629, 331 N.Y.S.2d 184 [4th Dept. 1972] ).  Here, Huntress failed to establish that he did not participate in the eviction of Kingsbury, and he therefore failed to establish as a matter of law that he cannot be held personally liable if the eviction violated RPAPL 853 (see Suprunchik v. Viti, 139 A.D.3d 1389, 1390–1391, 31 N.Y.S.3d 727 [4th Dept. 2016];  see also Retropolis, Inc., 17 A.D.3d at 211, 797 N.Y.S.2d 1).

Huntress nevertheless contends that the order insofar as it granted the motion with respect to the first cross claim should be affirmed because Kingsbury was not unlawfully evicted under RPAPL 853.  That alternative ground for affirmance, however, was not raised before the trial court and thus is not properly before us (see Lots 4 Less Stores, Inc. v. Integrated Props., Inc., 152 A.D.3d 1181, 1182, 59 N.Y.S.3d 628 [4th Dept. 2017];  see generally Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ).  Again, the only contention advanced by Huntress in support of the motion with respect to the first cross claim was that he could not be personally liable for the alleged wrongful eviction because he was acting as an agent of a disclosed principal.