GORDON v. John Teramo, et al., Respondents.

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

Jacob M. GORDON, Appellant, v. TERAMO & COMPANY, INC., et al., Defendants, John Teramo, et al., Respondents.

Decided: September 08, 2003

NANCY E. SMITH, J.P., DANIEL F. LUCIANO, HOWARD MILLER and THOMAS A. ADAMS, JJ. Foreht Last Landau Miller & Katz LLP, New York, NY, (Richard S. Last of counsel), for appellant. Zaslav & Auerbach, P.C., New York, NY, (H. Gary Zaslav and Allen H. Weiss of counsel), for respondents.

In an action, inter alia, to recover damages for breach of a construction contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated November 12, 2002, which granted the motion of the defendants John Teramo and Jason Teramo for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff asserted various causes of action, including one to recover damages for breach of contract, against, among others, the defendant Teramo & Company, Inc., and its successor, the defendant Teramo & Strauss Construction Co., Inc. (hereinafter the defendant corporations), arising from their allegedly defective performance of certain construction work.   The plaintiff also asserted negligence causes of action against the respondents Jason Teramo and John Teramo, both of whom were officers of Teramo & Company, Inc., and allegedly principals of the successor company.

 The gravamen of the plaintiff's complaint is that the work “performed under the contract was performed in a less than skillful and workmanlike manner.   This states a cause of action to recover damages for breach of contract, not negligence” (Westminster Constr. Co. v. Sherman, 160 A.D.2d 867, 868, 554 N.Y.S.2d 300;  see Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389-390, 521 N.Y.S.2d 653, 516 N.E.2d 190;  Zulinski v. Merkley Bros., 247 A.D.2d 613, 614, 669 N.Y.S.2d 225;  Merritt v. Hooshang Constr., 216 A.D.2d 542, 543, 628 N.Y.S.2d 792).   The plaintiff's allegations of negligence against the respondents are “merely a restatement, albeit in slightly different language, of the * * * contractual obligations asserted in the cause[s] of action for breach of contract” against the defendant corporations (Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., supra at 390, 521 N.Y.S.2d 653, 516 N.E.2d 190).

 In essence, then, the plaintiff's causes of action are based on the alleged breach of a contract by the defendant corporations.   As officers of the corporation with which the plaintiff contracted, or as alleged principals of the successor corporation, the respondents may not be held personally liable on the contract, since they did not bind themselves individually under that contract (see Westminster Constr. Co. v. Sherman, supra at 868, 554 N.Y.S.2d 300).

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