SPRING VALLEY IMPROVEMENTS LLC v. ABAJIAN (2007)

In an action, inter alia, to recover damages for breach of a commercial lease, the plaintiff appeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered November 28, 2005, which, after a nonjury trial, is in favor of the defendants Tony Abajian, Berj Abajian, and Diamond & Jewelry Center, LLC, and against it, directing dismissal of the complaint.

ORDERED that on the court's own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c] );  and it is further,

ORDERED that the order is affirmed, without costs or disbursements.

 Although a person entering into a contract on behalf of a nonexistent corporate entity may be held personally liable on the contract (see Metro Kitchenworks Sales, LLC v. Continental Cabinets, LLC, 31 A.D.3d 722, 723, 820 N.Y.S.2d 79;  San Sung Korean Methodist Church of N.Y. v. Professional USA Constr. Corp., 14 A.D.3d 501, 503, 789 N.Y.S.2d 65;  Grutman v. Katz, 202 A.D.2d 293, 294, 608 N.Y.S.2d 663;  Bay Ridge Lbr. Co. v. Groenendaal, 175 A.D.2d 94, 96, 571 N.Y.S.2d 798;  Clinton Invs. Co., II v. Watkins, 146 A.D.2d 861, 862-863, 536 N.Y.S.2d 270;  Brandes Meat Corp. v. Cromer, 146 A.D.2d 666, 667, 537 N.Y.S.2d 177;  14 N.Y. Jur. 2d, Business Relationships § 96), here, the plaintiff failed to make out a prima facie case at trial that the defendants Tony Abajian and Berj Abajian were liable under this theory.   The plaintiff failed to adduce evidence sufficient to demonstrate that the Abajians wrongfully purported to act on behalf of a nonexistent corporation (cf. Clinton Invs. Co., II v. Watkins, supra;  Imero Fiorentino Assoc. v. Green, 85 A.D.2d 419, 420-421, 447 N.Y.S.2d 942).   We decline to disturb the trial court's determination after the nonjury trial (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;  Islamic Ctr. of Harrison v. Islamic Science Found., 262 A.D.2d 362, 363, 692 N.Y.S.2d 94).

The plaintiff's remaining contentions are improperly raised for the first time on appeal or without merit.