SCHMITZ v. Eugenie L. Gray, Defendant.

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Supreme Court, Appellate Division, First Department, New York.

Helen D. SCHMITZ, as Executrix of Richard D. Schmitz, Deceased, Plaintiff-Respondent, v. Joseph A. MacDONALD, Defendant-Appellant, Eugenie L. Gray, Defendant.

Decided: May 26, 1998

Before MILONAS, J.P., and NARDELLI, MAZZARELLI and ANDRIAS, JJ. Robert Edward Sokolski, for Plaintiff-Respondent. Laurence P. Meyer, for Defendant-Appellant.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered September 4, 1997, inter alia, granting plaintiff's motion pursuant to CPLR 3213 for summary judgment, unanimously affirmed, without costs.   Appeal from order, same court and Justice, entered on or about June 13, 1997, which, inter alia, denied defendant-appellant's cross motion for summary judgment dismissing the complaint as against him, unanimously dismissed, without costs, as superseded by the appeal from the order of September 4, 1997 and appeal from order, same court and Justice, entered September 29, 1997, denying defendant's motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable order.

The IAS court properly awarded plaintiff summary judgment upon the subject non-negotiable promissory note.   There is no indication on the face of the note that defendant signed it in a representative capacity, and he is, accordingly, personally liable for payment of the note (see, Republic National Bank v. GSO, Inc., 177 A.D.2d 417, 418, 576 N.Y.S.2d 533).   While the fact that a signatory's name appears without reference to corporate representation is not always dispositive, here, in distinction to the cases upon which defendant-appellant relies (see, e.g., Shoenthal v. Bernstein, 276 A.D. 200, 93 N.Y.S.2d 187, lv. dismissed 276 A.D. 831, 93 N.Y.S.2d 908), the contract on its face is not ambiguous as to whether it is one made for a corporate principal.   Moreover, because the note evidencing defendant-appellant's personal obligation is clear and unambiguous on its face, his attempted resort to parol evidence was properly rejected by the IAS court (see, W.W.W. Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157, 163, 565 N.Y.S.2d 440, 566 N.E.2d 639).