Summary
finding triable issue of fact on corporate officer's individual liability for breach of contract which he signed on company's behalf included clause on reverse side providing that the signer "personally undertake and assume the full performance hereof"
Summary of this case from Hutter v. Countrywide Bank, N.A.Opinion
2002-10407
Submitted September 10, 2003.
October 20, 2003.
In an action to recover money due under two advertising contracts, the defendants appeal from an order of the Supreme Court, Nassau County (Davis, J.), dated October 16, 2002, which granted the plaintiff's motion for summary judgment on the complaint.
Steven Scavuzzo, Jericho, N.Y., for appellants.
Jay A. Press, P.C., Woodbury, N.Y. (Christine R. Mertz on the brief), for respondent.
Before: ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, SANDRA L. TOWNES, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision granting that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Dominick DePante and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the defendant Dominick DePante.
The individual defendant, Dominick DePante, an office manager employed by the corporate defendant, Boulevard Carriage Corporation, printed and signed his name on the face of two advertising form contracts executed on behalf of the corporate defendant. A clause on the reverse side of the contract provided that "the signer of the contract, does, by his execution of this agreement, personally undertake and assume the full performance hereof including payments of amounts due hereunder." An agent who signs an agreement on behalf of a disclosed principal will not be held liable for its performance unless the agent clearly and explicitly intended to substitute his personal liability for that of his principal ( see Savoy Record Co. v. Cardinal Export Corp., 15 N.Y.2d 1, 4-6; Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 67; Star Video Entertainment v. J I Video Distrib., 268 A.D.2d 423; American Media Concepts v. Atkins Pictures, 179 A.D.2d 446; Paribas Props. v. Benson, 146 A.D.2d 522). Although DePante printed his name beside the corporation's name and signed the form contracts, there is a triable issue of fact as to whether he should be held personally liable for the amounts due under these advertising agreements ( see Bank of N.Y. v. Zator, 274 A.D.2d 488; Star Video Entertainment v. J I Video Distrib., supra; American Media Concepts v. Atkins Pictures, supra; cf. Florence Corp. v. Penguin Contr. Corp., 227 A.D.2d 442).
FLORIO, J.P., KRAUSMAN, LUCIANO, TOWNES and RIVERA, JJ., concur.