Opinion
2017-1677 K C
01-18-2019
11211 CREATIVE CORP., Doing Business as LMNOP Creative, Appellant, v. Paul KRUG and Glaze Teriyaki, LLC, Respondents.
J. Greenberger, PLLC (Jordan Greenberger of counsel), for appellant. O'Donoghue, PLLC, for respondents (no brief filed).
J. Greenberger, PLLC (Jordan Greenberger of counsel), for appellant.
O'Donoghue, PLLC, for respondents (no brief filed).
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
ORDERED that the order dated June 22, 2017 is reversed, without costs, and defendants' motion to vacate the order dated April 3, 2017 is denied.
In this breach of contract action seeking to recover the principal sum of $ 13,441.80, the endorsed complaint alleges that plaintiff provided services for defendants Paul Krug and Glaze Teriyaki, LLC, a restaurant, and that defendants breached the terms of the contract by failing to make part of the third and all of the last installment payments provided for in the contract. Among other things, defendants' answer denied that Krug is liable in his individual capacity for any acts or omissions of Glaze Teriyaki, LLC. The answer is signed by defendants' counsel, and the back of the answer indicates a post office box number for defendants' counsel's address.
Plaintiff moved for summary judgment upon so much of the complaint as was asserted against defendant Paul Krug. In a supporting affidavit, plaintiff's owner averred that Krug had initialed each page of the contract and signed it. A copy of the contract, annexed to the motion papers, indicated that plaintiff was undertaking a major branding and marketing project on behalf of "Glaze Teriyaki Grill." The last page of the contract has two signature lines, one for "Designer's Signature," and one for "Client's Signature." It appears that Paul Krug signed above "Client's Signature." There was no indication in the contract that the individual's signature was as an agent for a named principal. Plaintiff's counsel also attached a copy of the affirmation of service of the summary judgment motion, along with a priority mail one-day receipt for $ 6.65 from the post office, dated March 21, 2017. The mailing address matches counsel's address on the back of the answer. Krug failed to oppose the motion, and, by order of the Civil Court dated April 3, 2017, the motion was granted against "defendant Paul Krug."
Defendants moved to vacate the April 3, 2017 order. In a supporting affirmation, defendants' counsel stated that the reason for the default was that the "the package [plaintiff's counsel had] sent with the motion was too large, the Post Office placed it somewhere they could not find it, and I did not receive such notice until after the appearance date." As a meritorious defense, defendants' counsel asserted that Glaze Teriyaki, LLC is "a properly formed LLC" and that Krug is not liable in his personal capacity for any judgment in this action. Plaintiff opposed the motion. By order entered June 22, 2017, the Civil Court granted the motion.
To vacate a default in opposing a plaintiff's motion for summary judgment, the defendant is required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1] ; Roche v. City of New York , 88 AD3d 978, 979 [2011] ; Casali v. Cyran , 84 AD3d 711 [2011] ; Simpson v. Tommy Hilfiger U.S.A., Inc. , 48 AD3d 389, 392 [2008] ). Here, Krug failed to establish a meritorious defense. While "[a]n 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 [2010] ; see Savoy Record Co. v. Cardinal Export Corp. , 15 NY2d 1, 4 [1964] ; Yellow Book Sales & Distrib. Co., Inc. v. Mantini , 85 AD3d 1019, 1021 [2011] ; Leonard Holzer Assoc. v. Orta, 250 AD2d 737 [1998] ), " ‘[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’ " ( Stonhard v. Blue Ridge Farms, LLC , 114 AD3d 757, 758 [2014], quoting Matter of Anderson , 70 AD3d at 821 ; see Restatement [Third] of Agency § 6.01 ). Here, neither the contract nor any of the other documents relied upon gives any indication that Glaze Teriyaki Grill was a limited liability company or a corporate entity, as opposed to simply a trade name (see New England Mar. Contrs. v. Martin , 156 AD2d 804, 804-805 [1989] ). In addition, Krug did not submit an affidavit attesting that he had ever informed plaintiff at the time they had entered into the contract that he was acting as an agent on behalf of a limited liability company (see Continental Manor II Condominium Homeowners Assn. v. Depew , 277 AD2d 340 [2000] ; Ardwin v. Englert , 81 AD2d 960, affd 56 NY2d 936 [1982] ; cf. Harrison v. Beizer , 47 Misc 3d 148[A], 2015 NY Slip Op 50766[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ). Since Krug failed to establish a meritorious defense, he showed no basis to vacate the April 3, 2017 order.
In view of the foregoing, we need not reach the issue of whether Krug established a reasonable excuse for the default.
Accordingly, the order dated June 22, 2017 is reversed and defendants' motion to vacate the order dated April 3, 2017 is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.