Stamina Prods., Inc. v. Zintec USA, Inc.

• Decision Date: 27 December 2011
• Citation: 90 A.D.3d 1021,935 N.Y.S.2d 629,2011 N.Y. Slip Op. 09621
• Parties: STAMINA PRODUCTS, INC., etc., respondent-appellant, v. ZINTEC USA, INC., et al., respondents,Anthony Yau, appellant-respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09621

90 A.D.3d 1021

935 N.Y.S.2d 629

STAMINA PRODUCTS, INC., etc., respondent-appellant,

v.ZINTEC USA, INC., et al., respondents,Anthony Yau, appellant-respondent.

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

Dec. 27, 2011.

Edward Weissman, New York, N.Y., for appellant-respondent.

Kevin Kerveng Tung, P.C., Flushing, N.Y. (Kenji Fukuda of counsel), for respondent-appellant.

REINALDO E. RIVERA, J.P., RANDALL T. ENG, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for breach of contract, the defendant Anthony Yau appeals from so much of an order of the Supreme Court, Queens County (Markey, J.), entered December 13, 2010, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him, and the plaintiff cross-appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment on the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, and the motion of the defendant Anthony Yau for summary judgment dismissing the complaint insofar as asserted against him is granted; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant Anthony Yau, payable by the plaintiff.

A corporate officer who executes a contract acting as an agent for a disclosed principal is not liable for a breach of the contract unless it clearly appears that he or she intended to bind himself or herself personally ( see Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 65, 217 N.Y.S.2d 55, 176 N.E.2d 74; Yellow Book Sales & Distrib. Co., Inc. v. Mantini, 85 A.D.3d 1019, 1021, 925 N.Y.S.2d 646; Weinreb v. Stinchfield, 19 A.D.3d 482, 483, 797 N.Y.S.2d 521; Star Video Entertainment v. J & I Video Distrib., 268 A.D.2d 423, 702 N.Y.S.2d 91). There must be “clear and explicit evidence of the agent's ‘intention to substitute or superadd his personal liability for, or to, that of his principal’ ” ( Star Video Entertainment v. J & I Video Distrib., 268 A.D.2d at 423–424, 702 N.Y.S.2d 91, quoting Savoy Record Co. v. Cardinal Export Corp., 15 N.Y.2d 1, 4, 254 N.Y.S.2d 521, 203 N.E.2d 206; see Yellow Book Sales & Distrib. Co., Inc. v. Mantini, 85 A.D.3d at 1021, 925 N.Y.S.2d 646).

Here, the individual defendant, Anthony Yau, made a prima facie showing of his entitlement to judgment as a matter of law by submitting evidentiary proof that he signed the subject agreement on behalf of a disclosed principal, the defendant Zintec USA, Inc., solely in his capacity as a corporate officer, and did not purport to bind himself individually under the agreement ( see Georgia Malone & Co., Inc. v. Rieder, 86 A.D.3d 406, 408, 926 N.Y.S.2d 494; Stern v. H. DiMarzo, Inc., 77 A.D.3d 730, 731, 909 N.Y.S.2d 480; Khiyayev v. MikeSad Enters., Inc., 66 A.D.3d 845, 846, 886 N.Y.S.2d 610; Wiernik v. Kurth, 59 A.D.3d 535, 537, 873 N.Y.S.2d 673; Colucci v. AFC Constr., 54 A.D.3d 798, 799, 863 N.Y.S.2d 767). In opposition, the plaintiff failed to raise a triable issue of fact ( see Weinreb v. Stinchfield, 19 A.D.3d at 483, 797 N.Y.S.2d 521; Leonard Holzer Assoc., Inc. v. Orta, 250 A.D.2d 737, 672 N.Y.S.2d 915). Accordingly, the Supreme Court should have granted Yau's motion for summary judgment dismissing the complaint insofar as asserted against him.

However, the Supreme Court properly denied the plaintiff's cross motion for summary judgment on the complaint. The...