Westminster Const. Co., Inc. v. Sherman

• Decision Date: 16 April 1990
• Parties: WESTMINSTER CONSTRUCTION COMPANY, INC., Plaintiff, v. Alan SHERMAN, et al., Defendants Third-Party Plaintiffs-Appellants, et al., Defendants; Vincent Pizzello, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 300

554 N.Y.S.2d 300

160 A.D.2d 867

WESTMINSTER CONSTRUCTION COMPANY, INC., Plaintiff, v. Alan SHERMAN, et al., Defendants Third-Party Plaintiffs-Appellants, et al., Defendants Vincent Pizzello, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

April 16, 1990.

Sarisohn, Sarisohn, Carner, Steindler, LeBow & Braun, Commack (Walter G. Steindler of counsel, Philip J. Castrovinci, on the brief), for defendants third-party plaintiffs-appellants.

John N. Fath, P.C., Lindenhurst (Vincent A. Malito, of counsel), for third-party defendant-respondent.

Before RUBIN, J.P., and BALLETTA, ROSENBLATT and MILLER, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of contract, the defendants and third-party plaintiffs appeal from an order of the Supreme Court, Suffolk County (Copertino, J.), dated March 21, 1988, which granted the motion of the third-party defendant to dismiss the third-party complaint.

ORDERED that the order is affirmed, with costs.

The appellants, Alan Sherman and Elaine Sherman, are defendants in an action commenced by Westminster Construction Company, Inc. (hereinafter Westminster). In that action, Westminster, inter alia, seeks damages for breach of a contract to construct a residence for the appellants. In defense of that action, the appellants generally allege that the contract was performed by Westminster in an unworkmanlike manner. After issue was joined, the appellants commenced a third-party action against the respondent, Vincent Pizzello, the principal officer of Westminster.

Three causes of action are alleged in the third-party complaint. Two of these causes of action generally allege that the respondent, either individually or in his capacity as an officer of Westminster, supervised the construction of the appellants' residence in a negligent and careless manner. The remaining cause of action alleges that the respondent falsely represented that he and his corporation had the requisite expertise to perform the subject work.

The Supreme Court granted the respondent's motion to dismiss the third-party complaint for its failure to state a cause of action.

Corporate officers may be held personally liable for personal torts committed in the performance of their duties for their corporation (see, Widlitz v. Scher, 148 A.D.2d 530, 540 N.Y.S.2d 179; Bellinzoni v. Seland, 128 A.D.2d 580, 512 N.Y.S.2d 846; Clark v. Pine Hill Homes, 112 A.D.2d 755, 492 N.Y.S.2d 253; Cleland v. Fort Ticonderoga Assn., 71 A.D.2d 740, 419 N.Y.S.2d 261; Bailey v. Baker's Air Force Gas Corp., 50 A.D.2d 129, 376 N.Y.S.2d 212). However, 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, Robinson v. Paramount Pictures Corp., 112 A.D.2d 208, 491 N.Y.S.2d 694; Steelmasters, Inc. v. Household Mfg. Co., 40 A.D.2d 963, 338 N.Y.S.2d 451; 15 NY Jur 2d, Business Relationships, § 1023).

The gravamen of two of the three causes of action set forth in the third-party complaint is that the work that was performed under the contract was performed in a less than skillful and workmanlike manner. This states a cause of action to recover damages for breach of contract, not negligence (see, Luckoff v. Sussex Downs, 104 A.D.2d 636, 480...