Lido Beach Towers v. Denis A. Miller Ins. Agency, Inc.

• Decision Date: 27 May 2015
• Docket Number: 2014-05403, 2014-06813
• Citation: 11 N.Y.S.3d 192,128 A.D.3d 1025,2015 N.Y. Slip Op. 04455
• Parties: LIDO BEACH TOWERS, etc., et al., plaintiffs-appellants, v. DENIS A. MILLER INSURANCE AGENCY, Inc., et al., defendants, Denis A. Miller, respondent, Kaled Management, Inc., defendant-appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1025

11 N.Y.S.3d 192

2015 N.Y. Slip Op. 04455

LIDO BEACH TOWERS, etc., et al., plaintiffs-appellants

v. DENIS A. MILLER INSURANCE AGENCY, Inc., et al., defendantsDenis A. Miller, respondentKaled Management, Inc., defendant-appellant.

2014-05403, 2014-06813

Supreme Court, Appellate Division, Second Department, New York.

May 27, 2015.

Wilkofsky, Friedman, Karel & Cummins, New York, N.Y. (Mark L. Friedman of counsel), for plaintiffs-appellants.

Goldberg Segalla LLP, New York, N.Y. (Peter J. Biging and Jennifer H. Feldscher of counsel), for defendant-appellant.

Keidel, Weldon & Cunningham, LLP, White Plains, N.Y. (Debra M. Krebs of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, HECTOR D. LaSALLE and BETSY BARROS, JJ.

Opinion

In an action to recover damages for breach of contract, injury to property, and gross negligence, the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Driscoll, J.) entered April 25, 2014, as granted those branches of the motion of the defendant Denis A. Miller which were for summary judgment dismissing the third and fourth causes of action, and (2) so much of an order of the same court entered June 3, 2014, as granted the same relief, and the defendant Kaled Management, Inc., separately appeals, as limited by its notice of appeal and brief, from so much of the same order entered June 3, 2014, as granted that branch of the motion of the defendant Denis A. Miller which was for summary judgment dismissing the third cause of action and the cross claims that it asserted against him.

ORDERED that the appeal by the plaintiffs from the order entered April 25, 2014, is dismissed, as that order was superseded by the order entered June 3, 2014 (see Matter of Cusimano v. Berita Realty, LLC, 103 A.D.3d 719, 960 N.Y.S.2d 441 ); and it is further,

ORDERED that the appeal by the defendant Kaled Management, Inc., from so much of the order entered June 3, 2014, as granted that branch of the motion of the defendant Denis A. Miller which was for summary judgment dismissing the third cause of action is dismissed, as the defendant Kaled Management, Inc., is not aggrieved by that portion of the order appealed from (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the order entered June 3, 2014, is affirmed insofar as appealed from by the plaintiffs and insofar as reviewed on the appeal by the defendant Kaled Management, Inc., and it is further,

ORDERED that one bill of costs is awarded to the defendant Denis A. Miller, payable by the plaintiffs and the defendant Kaled Management, Inc., appearing separately and filing separate briefs.

The plaintiffs commenced this action to recover damages for breach of contract, injury to property, and gross negligence against, among others, Denis A. Miller, individually, and Denis A. Miller Insurance Agency, Inc. (hereinafter DMA), as well as Kaled Management Inc. (hereinafter Kaled), the manager of Lido Beach Towers, a condominium building (hereinafter the subject property). The plaintiffs alleged that the subject property suffered extensive damage from Superstorm Sandy, and that the defendants failed to procure and maintain sufficient flood coverage insurance limits on the subject property. Miller moved for summary judgment dismissing the third and fourth causes of action, and all cross claims asserted against him individually. The Supreme Court granted Miller's motion. We affirm.

Corporate officers may not be held personally liable on contracts of their corporations, provided they did not purport to bind themselves individually under such contracts (see Stern v. H. DiMarzo, Inc., 77 A.D.3d 730, 909 N.Y.S.2d 480 ; Wiernik v. Kurth, 59 A.D.3d 535, 537, 873 N.Y.S.2d 673 ; Westminster Constr. Co. v. Sherman, 160 A.D.2d 867, 868, 554 N.Y.S.2d 300 ; see also Kallman v. Pinecrest Modular Homes, Inc., 81 A.D.3d 692, 693, 916 N.Y.S.2d 221 ). However, corporate officers “may be held personally liable for torts committed in the performance of their corporate duties” (Kopec v. Hempstead Gardens, 264 A.D.2d 714, 716, 696 N.Y.S.2d 53 ; see Huggins v. Parkset Plumbing Supply, Inc., 7 A.D.3d 672, 673, 776 N.Y.S.2d 827 ; Westminster Constr. Co. v. Sherman, 160 A.D.2d at 868, 554 N.Y.S.2d 300 ).

Here, Miller established his prima facie entitlement to judgment as a matter of law dismissing the third cause of action, which alleged negligence, by demonstrating that he did not engage in any independent tortious conduct with respect to the handling of the plaintiffs' insurance policy (see Ali v. Pacheco, 19 A.D.3d 439, 440, 797 N.Y.S.2d 101 ). The record demonstrates that, at all relevant times, Miller was acting within the course and scope of his employment with DMA, and that any alleged negligence in failing to advise the plaintiffs of a change to the coverage provided by the subject policy was due to a failure on the part of DMA. Contrary to the plaintiffs' arguments, they failed to raise a triable issue of fact in opposition to Miller's showing (see Alvarez...