Performance Comercial Importadora E Exportadora Ltda v. Sewa Intern. Fashions Pvt. Ltd.

• Decision Date: 28 December 2010
• Citation: 79 A.D.3d 673,915 N.Y.S.2d 44
• Parties: PERFORMANCE COMERCIAL IMPORTADORA E EXPORTADORA LTDA, Plaintiff-Respondent, v. SEWA INTERNATIONAL FASHIONS PVT. LTD., et al., Defendants, Star of India Fashions, Inc., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 44 79 A.D.3d 673 PERFORMANCE COMERCIAL IMPORTADORA E EXPORTADORA LTDA, Plaintiff-Respondent, v. SEWA INTERNATIONAL FASHIONS PVT. LTD., et al., Defendants, Star of India Fashions, Inc., Defendant-Appellant. Supreme Court, Appellate Division, First Department, New York. Dec. 28, 2010.

Glen Backer, New York, for appellant.

Strongin Rothman and Abrams, LLP, New York (Lena Davydan of counsel), for respondent.

TOM, J.P., ANDRIAS, NARDELLI, ACOSTA, DeGRASSE, JJ.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered April 13, 2010, which denied the motion by defendant Star of India Fashions for partial summary judgment dismissing the third cause of action, unanimously reversed, on the law, with costs, and the cause of action dismissed.

Under the third cause of action, it is alleged that Star of India breached a March 1998 oral agreement to deliver dress samples and swatches to plaintiff, an apparel vendor. Defendant Sewa International Fashions was the manufacturer of the dresses. Star of India, the designer of the dresses, moved for summary judgment on the ground that it was the agent for Sewa, a disclosed principal. Supreme Court denied the motion, finding an issue of fact as to whether the parties intended that Star of India would be bound by the agreement. We reverse.

An agent for a disclosed principal will not be personally bound unless there is clear and explicit evidence of the agent's intention to substitute or superadd his or her personal liability for, or to, that of the principal ( Savoy Record Co. v. Cardinal Export Corp., 15 N.Y.2d 1, 4, 254 N.Y.S.2d 521, 203 N.E.2d 206 [1964] ). It is categorically stated in the verified complaint that Star of India was Sewa's agent for purposesof the contract. Such a statement in a pleading constitutes a formal judicial admission and evidence of the fact admitted ( Bogoni v. Friedlander, 197 A.D.2d 281, 291-292, 610 N.Y.S.2d 511 [1994], lv. denied 84 N.Y.2d 803, 617 N.Y.S.2d 137, 641 N.E.2d 158 [1994] ). To be sure, plaintiff's president, Daniel Mendes, testified that it was his understanding from the complaint that Star of India was acting on behalf of Sewa. In light of plaintiff's admission, the court erred in finding that an issue of fact was raised by Mendes's testimony that he was not aware of the agency relationship( see e.g. Karasik v. Bird, 104 A.D.2d 758, 480 N.Y.S.2d 491 [1984] ). For the same reason, we reject plaintiff's argument that a reasonable juror might conclude...