Opinion
November 9, 1999
Brian J. Oberman, for Plaintiff-Respondent.
Robert J. Kaplan, for Defendant-Appellant.
NARDELLI, J.P., TOM, MAZZARELLI, WALLACH, BUCKLEY, JJ.
Order, Supreme Court, New York County (Lorraine Miller, J.), entered March 16, 1999, which denied defendant-appellant's motion for summary judgment, unanimously affirmed, without costs.
Summary judgment was properly denied. Appellant's contention that he signed an inspection memorandum accepting delivery of diamonds as agent of the corporate defendant does not refute plaintiff's allegation that the diamonds were sold and delivered to the corporate defendant at appellant's specific instance or that both defendants were liable for the sum owed. The documents relied upon by appellant do not, on their face, eliminate all factual issues as to whether the parties intended to hold appellant personally liable in addition to the corporate defendant and appellant failed to offer proof extrinsic to the documents to support his position (compare, I. Kaszirer Diamonds v. Zohar Creations, 146 A.D.2d 492, with Goldstar Smoked Fish v. Greenfield Partners, 206 A.D.2d 457, lv denied 85 N.Y.2d 803). The deficiency of appellant's proof leaves no occasion for considering the quality of plaintiff' s opposing proof (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.