FIRST CAPITAL ASSET MANAGEMENT INC v. Sohrab Vahabzadeh, Defendant-Respondent.

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

FIRST CAPITAL ASSET MANAGEMENT, INC., Plaintiff-Appellant, v. NORTH AMERICAN CONSORTIUM, INC., et al, Defendants, Sohrab Vahabzadeh, Defendant-Respondent.

Decided: August 16, 2001

ROSENBERGER, J.P., ANDRIAS, RUBIN, BUCKLEY and MARLOW, JJ. Eric W. Berry, for Plaintiff-Appellant. Ira Daniel Tokayer, for Defendant-Respondent.

Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered May 13, 1997, which, to the extent appealed from, granted defendant Sohrab Vahabzadeh's motion for summary judgment and dismissed the causes of action seeking to hold him personally liable, unanimously reversed, on the law, with costs, motion denied and complaint reinstated as to defendant Vahabzadeh.

This is an action concerning the purported breach of a stock purchase agreement.   Summary judgment was granted against two corporate entities in favor of plaintiff, but defendant Sohrab's motion to dismiss was granted on the basis that he only signed in his individual capacity to bind himself to a restrictive covenant.   In fact, Sohrab signed the agreement three times, once each on behalf of the corporate entities and once on his own behalf;  there was nothing in the agreement which indicated that Sohrab's signature was only intended to bind him to the restrictive covenant (see, Salzman Sign Co., v. Beck, 10 N.Y.2d 63, 67, 217 N.Y.S.2d 55, 176 N.E.2d 74[multiple signatures by individual evidence personal liability] ).   Although the first paragraph of the agreement specifically identifies the two corporations as the “buyer”, Sohrab was identified in a later notice section as one of the “purchasers”.   The parties' intentions regarding Sohrab's personal liability are thus ambiguously stated in the agreement (see, Paribas Properties, Inc., v. Benson, 146 A.D.2d 522, 525, 536 N.Y.S.2d 1007;  Oost-Lievense v. North American Consortium, 969 F.Supp. 874, 879).   Here, all the extrinsic evidence of the parties' negotiation and conduct should be considered to determine the meaning of the agreement (cf., W.W.W. Associates, Inc. v. Giancontieri, 77 N.Y.2d 157, 565 N.Y.S.2d 440, 566 N.E.2d 639).   The undisputed facts are that the two corporations had no assets and were solely owned by Sohrab, and that the agreement explicitly stated that the “buyer” had funds sufficient to pay the purchase price at the closing.