Opinion
2005-647 DC.
Decided July 12, 2006.
Appeal from a judgment of the City Court of Beacon, Dutchess County (Timothy G. Pagones, J.), entered June 30, 2004. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,000.
Judgment affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
Plaintiff commenced this small claims action sounding in breach of contract to recover damages for defendant's alleged failure to complete the parties' contract which involved, among other things, the installation of new countertops, cabinets, and a sink in her kitchen. At trial, plaintiff asserted that defendant walked off the job and defendant claimed plaintiff prevented him from completing the job by locking him out of her home. Defendant appeals from the judgment awarding plaintiff the principal sum of $3,000.
While the contract between the parties contained an arbitration clause, by his active participation in the litigation, defendant waived his right to arbitrate ( see Zack Assoc. v. Setauket Fire Dist., 12 AD3d 439; Figueroa v. Flatbush Women's Servs., 244 AD2d 453). "Once the right to arbitrate a particular dispute has been lost by an election to litigate it cannot be recaptured" ( Sherill v. Grayco Bldrs., 64 NY2d 261, 274). Thus, defendant's reliance upon the arbitration clause for the first time on appeal lacks merit.
Also without merit is defendant's claim that he should not be personally liable to plaintiff because he acted on behalf of a corporate entity. Said claim was raised for the first time on appeal and defendant's assertion that Custom Built is a corporation is dehors the record. In any event, as a general rule, "[w]hen an agent acts on behalf of a disclosed principal, the agent will not be personally liable for a breach of contract unless there is clear and explicit evidence of the agent's intention to be personally bound" ( Weinreb v. Stinchfield, 19 AD3d 482, 482). However, in the instant case, because defendant did not act on behalf of a disclosed principal (nowhere in the contract is Custom Built identified as a corporation), his liability falls within the general rule "that an agent for an undisclosed principal is liable on any contracts that he or she made on behalf of the principal" ( J.P. Endeavors v. Dushaj, 8 AD3d 440, 442; Kaplon-Belo Assocs. v. Farrelly, 221 AD2d 321).
Inasmuch as the court's determination that defendant was liable to plaintiff was based upon credibility determinations and plaintiff presented two itemized estimates, the judgment should be affirmed since it rendered substantial justice between the parties according to the rules and principles of substantive law ( see UCCA 1804, 1807).
Rudolph, P.J., Angiolillo and Lippman, JJ., concur.