Stonhard, etc., appellant, v. LLC (2014)

Argued—January 9, 2014

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated May 13, 2011, as denied that branch of its motion which was for summary judgment on the complaint insofar as asserted against the defendant Marvin Sussman, and granted that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Marvin Sussman.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Marvin Sussman is granted, and that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Marvin Sussman is denied.

“An agent who acts on behalf of a disclosed principal will generally not be liable for a breach of contract” (Matter of Anderson v. PODS, Inc., 70 AD3d 820, 821;  see Savoy Record Co. v. Cardinal Export Corp., 15 N.Y.2d 1, 4;  Yellow Book Sales & Distrib.   Co., Inc. v Mantini, 85 AD3d 1019, 1021;  Leonard Holzer Assoc. v. Orta, 250 A.D.2d 737).  “A principal is considered to be ‘disclosed’ if, at the time of a transaction conducted by an agent, the other party to the contract had notice that the agent was acting for the principal and of the principal's identity” (Matter of Anderson v. PODS, Inc., 70 AD3d at 821;  see Restatement [Third] of Agency § 6.01).  “Knowledge of the real principal is the test, and this means actual knowledge, not suspicion” (Ell Dee Clothing Co. v. Marsh, 247 N.Y. 392, 397;  see Tarolli Lbr. Co. v. Andreassi, 59 A.D.2d 1011, 1012;  Louis Gendelman Rigging & Trucking v Koeppel, 29 A.D.2d 540).  “The defense of agency in avoidance of contractual liability is an affirmative defense and the burden of establishing the disclosure of the agency relationship and the corporate existence and identity of the principal is upon he [or she] who asserts an agency relationship” (Safety Envtl., Inc. v Barberry Rose Mgt. Co., Inc., 94 AD3d 969, 969, quoting Courthouse Corporate Ctr. LLC v Schulman, 74 AD3d 725, 727;  see Ingordo v Square Plus Operating Corp., 276 A.D.2d 528;  12 Richard A. Lord, Williston on Contracts § 35:35, at 359 [4th ed 1990] ).

In opposition to the plaintiff's prima facie showing, the defendants failed to raise a triable issue of fact (see Safety Envtl., Inc. v Barberry Rose Mgt. Co., Inc., 94 AD3d 969, 969;  Courthouse Corporate Ctr. LLC v Schulman, 74 AD3d 725, 727;  Ingordo v Square Plus Operating Corp., 276 A.D.2d 528;  12 Richard A. Lord, Williston on Contracts § 35:35, at 359 [4th ed 1990] ).   Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against Sussman and should have denied that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against Sussman (see New England Mar. Contrs. v. Martin, 156 A.D.2d at 805–806;  Tarolli Lbr. Co. v. Andreassi, 59 A.D.2d at 1012).

MASTRO, J.P., RIVERA, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court