A.I. Credit Corp. v Scotto's Holding Corp.

[*1] A.I. Credit Corp. v Scotto's Holding Corp. 2007 NY Slip Op 52423(U) [18 Misc 3d 127(A)] Decided on December 21, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, DAVIS, JJ
570069/07.

A.I. Credit Corp., Plaintiff-Respondent,

against

Scotto's Holding Corp., Scotto Bros. Restaurants, Inc., Scotto Bros. Restaurant, Scotto Bros. Restaurant, Westbury, Inc., Scotto Bros. Woodbury Restaurant, Inc., D...A. Carle Place Restaurant, Inc. and Scotto Bros. Restaurant Enterprises, Inc., Defendants-Appellants.

Defendants Scotto's Holding Corp., Scotto Bros. Restaurant, Westbury, Inc., Scotto Bros. Woodbury Restaurant, Inc., D.V.V.A. Carle Place Restaurant, Inc. and Scotto Bros. Restaurant Enterprises, Inc. as limited by their brief, appeal from that portion of a judgment of the Civil Court of the City of New York, New York County (Shlomo S. Hagler, J.), entered on or about June 20, 2006, which, upon a prior order granting summary judgment, awarded plaintiff damages in the principal sum of $110,947.06 on its first cause of action for breach of contract and attorneys' fees in the sum of $34,000.

Per Curiam.

Judgment (Shlomo S. Hagler, J.), entered on or about June 20, 2006, modified by vacating so much thereof as awarded plaintiff judgment as against defendant-appellants, and as modified, affirmed, without costs.

This action, seeking recovery of the balance due under a premium finance agreement, is not susceptible to summary disposition. The identity of the intended borrower(s) is not readily ascertainable from the face of the premium finance agreement here at issue (see W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 162 [1990]), which ambiguously names the borrower as "Scotto Brothers Restaurants," without any corporate identity. Nor is it clear that the signatory on the agreement executed the contract on behalf of all of the defendants. Notably, the agreement disclosed no representative capacity. Summary judgment should have been denied in view of "unresolved factual disputes central to the nature of the loan" (Schneider v Phelps, 41 [*2]NY2d 238, 244 [1997]).

This Constitutes the Decision and Order of the Court.
Decision Date: December 21, 2007