Colucci v. Afc Construction

• Decision Date: 16 September 2008
• Docket Number: No. 2007-11155,2007-11155
• Citation: 54 A.D.3d 798,2008 NY Slip Op 6952,863 N.Y.S.2d 767
• Parties: STEVEN COLUCCI et al., Respondents, v. AFC CONSTRUCTION et al., Defendants, and ANTHONY F. CATANZARO, Appellant.
• Court: New York Supreme Court — Appellate Division

54 A.D.3d 798

863 N.Y.S.2d 767

2008 NY Slip Op 6952

STEVEN COLUCCI et al., Respondents, v. AFC CONSTRUCTION et al., Defendants, and ANTHONY F. CATANZARO, Appellant.

No. 2007-11155

Appellate Division of the Supreme Court of the State of New York, Second Department.

September 16, 2008.

In an action, inter alia, to recover damages for breach of contract, the defendant Anthony F. Catanzaro appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated March 5, 2007, as denied that branch of his motion which was for summary judgment dismissing the complaint insofar as asserted against him individually.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Anthony F. Catanzaro individually is granted.

Contrary to the determination of the Supreme Court, the plaintiffs failed to submit sufficient evidence to raise a triable issue of fact as to the personal liability of the defendant Anthony F. Catanzaro in opposition to Catanzaro's prima facie showing of entitlement to summary judgment (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). Catanzaro demonstrated that the construction contract at issue was solely between the plaintiffs as property owners and the defendant Southbayview Construction Corporation (hereinafter Southbayview), Catanzaro's closely-held corporation. The text of the contract expressly and unequivocally established that Catanzaro executed the agreement only as the representative of Southbayview, and the plaintiffs failed to present any evidence of an intention that Catanzaro was to be personally bound thereby (see Savoy Record Co. v Cardinal Export Corp., 15 NY2d 1, 4 [1964]; Noel v L & M Holding Corp., 35 AD3d 681, 682 [2006]; Weinreb v Stinchfield, 19 AD3d 482, 483 [2005]). In this regard, the plaintiff Steven Colucci's conclusory assertions in opposition to the motion for summary judgment that he was unaware that any corporation was involved in the transaction and believed that Catanzaro was conducting business as an individual are completely contradicted by the language of the contract and by his own earlier deposition testimony. Accordingly, his affidavit raised only feigned issues of fact designed to avoid the consequences of his prior testimony, and was insufficient to defeat the motion for summary...