1100 Inc. v 4441 Broadway Realty Corp.

1100 Inc. v 4441 Broadway Realty Corp. 2004 NY Slip Op 02142 [5 AD3d 284] March 23, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 26, 2004

1100 Inc., Respondent,
v
4441 Broadway Realty Corp. et al., Appellants, and Juan Caldelas et al., Respondents.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about March 18, 2003, which, to the extent appealed from as limited by the briefs, denied the corporate defendants' cross motion for summary judgment, unanimously affirmed, with costs.

Plaintiff brought this action for breach of a contract to purchase a building from the corporate defendants. It then sought to amend the complaint to assert a claim against the additional individual defendants for fraud in signing the contract purportedly on behalf of the corporation. The corporate defendants cross-moved for, inter alia, summary judgment on the ground that the contract of sale was never signed by necessary parties on behalf of the seller. Denial of summary judgment was based on the issue of whether the contract had in fact been signed by necessary parties, and whether the three individual defendants who did sign were committing fraud by misrepresenting their authority to do so, or whether they were simply following corporate procedure with respect to the sale. The affidavits of the principals of the corporate litigants present issues of credibility which cannot be resolved on a motion for summary disposition (Cochrane v Owens-Corning Fiberglas Corp., 219 AD2d 557, 559-560 [1995]). Concur—Tom, J.P., Andrias, Ellerin and Gonzalez, JJ.