ABC Realty, Inc. v Lan Me Foo

[*1] ABC Realty, Inc. v Lan Me Foo 2005 NY Slip Op 50231(U) Decided on March 1, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. WILLIAM J. DAVIS, Justices.
570911/03

ABC Realty, Inc., Plaintiff-Appellant,

against

Lan Me Foo and Steven Sattery, Defendants-Respondents.

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court, New York County, entered on or about July 17, 2003 after trial (Saliann Scarpulla, J.) which dismissed the action on the merits as against defendant Foo and dismissed the action as against defendant Sattery for lack of "proper service".

PER CURIAM:

Judgment entered on or about July 17, 2003 (Saliann Scarpulla, J.) reversed, without costs, and a new trial ordered.

Plaintiff instituted this small claims action to recover a real estate broker's commission allegedly due under a written brokerage agreement which, although naming both defendants Lan Me Foo (Foo) and Steven Sattery (Sattery), was signed only by Sattery. The trial record does not permit intelligent appellate review of the substantive issues presented in the action, including the nature of the business relationship, if any, between the individual defendants, whether Sattery had actual or apparent authority to sign the brokerage agreement on behalf of Foo (see Hallock v State of New York, 64 NY2d 224, 232 [1984]), and whether Sattery was Foo's alter ego for the purpose of the real estate transaction (see Manhattan Apartments, Inc. v Simeon, 11 AD3d 404 [2004]). Significantly, the principal defense evidence bearing on these [*2]critical issues is found in the brief and unilluminating testimony of defendant Foo, who indicated that although she owned the photo business which ultimately took occupancy of the commercial space that plaintiff had previously shown to Sattery, she (Foo) "very seldom" was involved in the operation of the business and neither knew nor was "interested" in Sattery's business dealings.* For parallel reasons, the sparse record does not adequately address the jurisdictional issue involving the location of the defaulting defendant Sattery's place of business (see CCA 1803[a]). Given the incomplete and unsatisfactory state of the record, we believe that "substantial justice" (CCA
* The day-to-day operation of defendant Foo's photo business apparently was managed by her adult son — an individual identified in the record only as "Mr. Foo" - who, in addition to conducting a portion of the direct examination of defendant Foo, was improperly permitted to "speak for" her without taking a formal oath (see Trensky v Johnson, 1 Misc 3d 50, 51-52 [2000]). It is unclear whether, and to what extent, the trial court considered the son's unsworn testimony in resolving the matter.
1804) will best be served by trying this matter anew.

This constitutes the decision and order of the
court.
Decision Date: March 01, 2005