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Safety Envtl., Inc. v. Barberry Rose Mgmt. Co.

Supreme Court, Appellate Division, Second Department, New York.
Apr 17, 2012
94 A.D.3d 969 (N.Y. App. Div. 2012)

Opinion

2012-04-17

SAFETY ENVIRONMENTAL, INC., appellant, v. BARBERRY ROSE MANAGEMENT COMPANY, INC., respondent.

Meyers, Saxon & Cole, Brooklyn, N.Y. (Gerald Slotnik of counsel), for appellant. Sidrane & Schwartz–Sidrane, LLP, Hewlett, N.Y. (Steven D. Sidrane of counsel), for respondent.


Meyers, Saxon & Cole, Brooklyn, N.Y. (Gerald Slotnik of counsel), for appellant. Sidrane & Schwartz–Sidrane, LLP, Hewlett, N.Y. (Steven D. Sidrane of counsel), for respondent.

THOMAS A. DICKERSON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

In an action to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), dated May 23, 2011, as granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff performs lead testing services. Between 2005 and 2008, the defendant requested the plaintiff's services at a number of properties throughout New York City. The plaintiff performed the services requested. However, a number of invoices issued by the plaintiff remained unpaid. The plaintiff commenced this action to recover unpaid amounts. The defendant moved for summary judgment dismissing the complaint, asserting that it was a managing agent for various disclosed principals, the property owners. According to the defendant, its status as agent was clear from public records, as well as from documents generated and maintained by the parties, including invoices, work orders, and reports setting forth test results. The plaintiff opposed the motion, asserting, among other things, that the defendant never disclosed that it was acting as an agent. In the order appealed from, the Supreme Court, inter alia, granted the defendant's motion for summary judgment dismissing the complaint. We reverse the order insofar as appealed from.

“The defense of agency in avoidance of contractual liability is an affirmative defense and the burden of establishing the disclosure of the agency relationship and the corporate existence and identity of the principal is upon he [or she] who asserts an agency relationship” ( Courthouse Corporate Ctr. LLC v. Schulman, 74 A.D.3d 725, 727, 902 N.Y.S.2d 160 [internal quotation marks omitted]; see Ingordo v. Square Plus Operating Corp., 276 A.D.2d 528; 12 Lord, Williston on Contracts § 35:35, at 359 [4th ed.] ). “An agent who acts on behalf of a disclosed principal will generally not be liable for a breach of contract” ( Matter of Anderson v. PODS, Inc., 70 A.D.3d 820, 821, 896 N.Y.S.2d 88; see Savoy Record Co. v. Cardinal Export Corp., 15 N.Y.2d 1, 4, 254 N.Y.S.2d 521, 203 N.E.2d 206; Yellow Book Sales & Distrib. Co., Inc. v. Mantini, 85 A.D.3d 1019, 1021, 925 N.Y.S.2d 646; Leonard Holzer Assoc. v. Orta, 250 A.D.2d 737, 672 N.Y.S.2d 915). “A principal is considered to be ‘disclosed’ if, at the time of a transaction conducted by an agent, the other party to the contract had notice that the agent was acting for the principal and of the principal's identity” ( Matter of Anderson v. PODS, Inc., 70 A.D.3d at 821, 896 N.Y.S.2d 88; see Restatement [Third] of Agency § 6.01). “Knowledge of the real principal is the test, and this means actual knowledge, not suspicion” ( Ell Dee Clothing Co. v. Marsh, 247 N.Y. 392, 397, 160 N.E. 651; see Tarolli Lbr. Co. v. Andreassi, 59 A.D.2d 1011, 1012, 399 N.Y.S.2d 739; Louis Gendelman Rigging & Trucking v. Koeppel, 29 A.D.2d 540, 540, 285 N.Y.S.2d 310).

Here, while each of the documents generated and maintained by the parties contained a corporate name in addition to the defendant's, they did not indicate or make clear that the various nonparty corporations were the property owners, or that the defendant was acting in the capacity of an agent. Indeed, they offered no insight into the nature of the relationship between the defendant and the various named corporations. Moreover, while certain public records indicated that the defendant was a managing agent for the corporate property owners, the plaintiff did not have a duty to investigate whether the defendant was acting as agent for various principals ( see Tarolli Lbr. Co. v. Andreassi, 59 A.D.2d at 1012, 399 N.Y.S.2d 739). Furthermore, the deposition testimony of an employee of the defendant and of the principal of the plaintiff were conflicting as to the plaintiff's understanding of the capacity in which the defendant was functioning at relevant times. Thus, in support of its motion, the defendant failed to establish, prima facie, that the plaintiff “had notice that the agent was acting for the principal[s] and of the principal[s'] identit[ies]” ( Matter of Anderson v. PODS, Inc., 70 A.D.3d at 821, 896 N.Y.S.2d 88; see Restatement [Third] of Agency § 6.01). Accordingly, the Supreme Court should have denied the defendant's motion, regardless of the sufficiency of the plaintiff's opposition papers ( see e.g. Katanov v. County of Nassau, 91 A.D.3d 723, 936 N.Y.S.2d 285).

In light of our determination, we need not reach the plaintiff's remaining contention.


Summaries of

Safety Envtl., Inc. v. Barberry Rose Mgmt. Co.

Supreme Court, Appellate Division, Second Department, New York.
Apr 17, 2012
94 A.D.3d 969 (N.Y. App. Div. 2012)
Case details for

Safety Envtl., Inc. v. Barberry Rose Mgmt. Co.

Case Details

Full title:SAFETY ENVIRONMENTAL, INC., appellant, v. BARBERRY ROSE MANAGEMENT…

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

Date published: Apr 17, 2012

Citations

94 A.D.3d 969 (N.Y. App. Div. 2012)
942 N.Y.S.2d 200
2012 N.Y. Slip Op. 2856

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