NOEL v. HOLDING CORP 3730 (2006)

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Giacobbe, J.), dated August, 2005, as granted the motion of the defendant Thomas Gennarelli for summary judgment dismissing the complaint and denied the plaintiffs' cross motion for leave to amend their summons and complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs entered into a contract with Block 3730 Corp. for the purchase of a newly-constructed single-family home.   Shortly after the plaintiffs took possession, the home experienced water damage as the result of an allegedly defective sewer system.   The plaintiffs commenced this action against the corporate defendant, L & M Holding Corp., f/k/a Block 3730 Corp. (hereinafter Block 3730), as well as its president, Thomas Gennarelli, in his individual capacity.

The Supreme Court properly granted Gennarelli's motion for summary judgment dismissing the complaint insofar as asserted against him as there was no evidence to support a finding that Gennarelli intended to be personally bound by the contract of sale between Block 3730 and the plaintiffs (see Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 67, 217 N.Y.S.2d 55, 176 N.E.2d 74;  Weinreb v. Stinchfield, 19 A.D.3d 482, 483, 797 N.Y.S.2d 521;  Kopec v. Hempstead Gardens, 264 A.D.2d 714, 715, 696 N.Y.S.2d 53).

The plaintiffs' opposition to the summary judgment motion was supported only by their attorney's affirmation, based upon information and belief, and a photocopy of their proposed amended pleadings, verified by their attorney.   It lacked any probative value and was insufficient to defeat Gennarelli's prima facie showing of entitlement to judgment as a matter of law (see S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342, 357 N.Y.S.2d 478, 313 N.E.2d 776;  Blumenfeld v. DeLuca, 24 A.D.3d 405, 807 N.Y.S.2d 99;  Ramnarine v. Memorial Ctr., 281 A.D.2d 218, 722 N.Y.S.2d 493).

The plaintiffs' remaining contentions are without merit.