Opinion
10090-2005.
Decided September 18, 2006.
TELL CHESER BREITBART, LLP, BY: HARLAN R. SCHREIBER, ESQ., New York, NY, Plaintiff's Attorney.
Douglas Hopkins, Pro Se, New York, NY.
Upon reading and filing the following papers relative to this matter: Plaintiff's Notice of Motion dated May 16, 2005 and the exhibits attached thereto; and now it is
ORDERED that the motion for summary judgment in lieu of complaint is denied and the motion is deemed the complaint pursuant to CPLR § 3213; it is further
ORDERED that the movant is directed to serve a copy of this decision upon the defendant and the defendant is directed to serve an answer in this case within thirty days of such service.
The plaintiff moves for summary judgment in lieu of complaint based upon an agreement entitled "Stara Cosmetics Corporation Convertible Promissory Note and Stock Subscription" (hereinafter "the Agreement"). The Agreement between Stara Cosmetics Corporation and the plaintiff states that the defendant "personally and in his individual capacity guarantees the prompt payment of the above loan." Under the sole signature line of the Agreement (which the defendant signed) however is written "Douglas Hopkins, President." Above that signature line is written "Stara Cosmetics Corporation." There is no second or separate signature by the defendant in his individual capacity, nor is there a separate personal guaranty executed by the defendant.
When an agent acts on behalf of a disclosed principal, the agent will not be personally liable for a breach of contract unless there is clear and explicit evidence of the agent's intention to be personally bound ( see Savoy Record Co. v. Cardinal Export Corp., 15 NY2d 1, 4). Furthermore, if liability is to be imposed, it must be the intention of all of the parties that defendant's signature serve "a threefold function: (a) to bind the principal [Stara Cosmetics] to the agreement; (b) to support the very agency [of defendant Hopkins] itself, since by a peculiar bootstrap' device the principal is to represent and warrant' the authority of the very agent whose signature is to bind it to the agreement; and (c) to bind the agent [defendant Hopkins] as a guarantor of its principal's obligation" ( Savoy Record Co. v. Cardinal Export Corp., 15 NY2d at 4). "What is of crucial importance . . . is the intention of the agent, the party to be charged in this case, [defendant Hopkins] to be personally bound" ( Savoy Record Co. v. Cardinal Export Corp., 15 NY2d at 4-5). In this case, the writing in issue could be viewed as an offer to the defendant to enter into a binding personal commitment, and without more, cannot convert the defendant's signature on behalf of Stara Cosmetics Corporation, as its President, into a binding acceptance of such an offer ( see Savoy Record Co. v. Cardinal Export Corp., 15 NY2d at 5). Where the liability of the defendant is based upon the terms of the Agreement, CPLR § 3213 is appropriate ( see Holmes v. Allstate Insurance Company, 33 AD2d 96, 99 [1st Dept 1969]). "On the other hand, where one is compelled to look beyond the terms of a particular . . . contract to find the basis for the liability," CPLR § 3213 is unavailable ( Holmes v. Allstate Insurance Company, 33 AD2d at 99). As this Court cannot determine from the writing alone whether the defendant intended by his signature as an agent of the corporation, to be personally bound, the plaintiff's motion pursuant to CPLR § 3213 must be denied.
The plaintiff also submits a copy of an email allegedly from the defendant, wherein the defendant acknowledges his personal liability. As this is not an affidavit, nor in admissible form, it cannot serve as a predicate for personal liability.