Opinion
LT-002070-11.
Decided on July 21, 2011.
Law Office of William J. McLaughlin, Attorneys for Petitioner, 81 Hempstead Avenue, Lynbrook, New York; The Law Offices of Ira S. Newman, Attorneys for Respondents, Great Neck, New York.
Petitioner, KLM Holdings, LLC (hereinafter "Petitioner") has brought a non-payment petition against Elvilanoto Ristorante, LLC and Victor Argudo's (hereinafter "Respondent"). Respondent, moves for summary judgment dismissing the petition against him.
Petitioner entered into a lease with Elvilanoto Ristorate, LLC signed by Respondent. Petitioner argues language contained in the rider to the lease render Respondent personally liable.
It appears to this court Respondent signed the lease as an agent of Elvilanoto Ristorante, LLC and not as an individual. "[W]here individual responsibility is demanded the nearly universal practice is that the officer signs twice — once as an officer and again as an individual." Salzman Sign Co. v. Beck 10 NY2d 63, 67 (NY 1961). Respondent signed both the lease in question and the rider to the lease only once, as the agent for Elvilanoto Ristorante, LLC.
". . . [T]he courts should refrain from foisting [the obligation of guarantor] on a party be he an individual or corporation, who simply signs as agent, absent the requisite clear and unequivocal evidence to be gathered from the writing itself, the he intended to assume such a liability." Savoy Record Co. v. Cardinal Export Corp., 15 NY2d 1, 7
Even if Victor Argudo had signed as a guarantor, the District Court does not have jurisdiction over guarantors, as a landlord tenant relationship has not been established between the parties. NYPRAC-LT § 4:231 citing; Phoenix Industries, Inc. v. Ultimate Sports, LLC, 19 Misc 3d 129(A), 859 N.Y.S.2d 906 (App. Term 2008)
; Realty Equity Holdings 3820, LLC v. DeVito Furniture Corp., 1 Misc 3d 129(A), 781 N.Y.S.2d 627 (App. Term 2003) ("[G]uarantor's are not proper parties in a summary proceeding.").
For the foregoing reasons, respondent Victor Argudo's motion to dismiss the Petition against him is hereby granted.
So Ordered: