Yellow Book Sales & Distrib. Co. Inc. v M & J Commodity Brokerage Corp.

[*1] Yellow Book Sales & Distrib. Co. Inc. v M & J Commodity Brokerage Corp. 2015 NY Slip Op 51652(U) Decided on November 19, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
15-330

Yellow Book Sales and Distribution Company Inc. (A Deleware Corporation), Plaintiff-Appellant,

against

M & J Commodity Brokerage Corp., James Appel and Michael Appel, Defendants-Respondents.

Plaintiff appeals from that portion of a judgment of the Civil Court of the City of New York, New York County (Nancy M. Bannon, J.), entered August 8, 2014, after a nonjury trial, in favor of defendant Michael Appel dismissing the complaint as against him.

Per Curiam.

Judgment (Nancy M. Bannon, J.), entered August 8, 2014, insofar as appealed from, affirmed, with $25 costs.

The trial court's determination that defendant Michael Appel [Appel] is not liable as a guarantor on the advertising contracts he executed on behalf of the corporate defendant is supported by a fair interpretation of the evidence. The contracts at issue, between plaintiff and the corporate defendant, contained only a single signature line, and Appel testified that he signed the contracts on behalf of the corporate defendant and never intended to be personally liable. Although the text of the agreement states that the signor is also personally liable as a guarantor, we agree with the trial court that in the particular circumstances at issue, there was no clear and explicit evidence that Appel intended to superadd his personal liability to that of the corporate defendant (see Savoy Record Co. v Cardinal Export Corp., 15 NY2d 1, 6-7 [1964]; Yellow Book Sales & Distrib. Co., Inc. (a Del. Corp.) v RS Bldrs., Inc., 41 Misc 3d 146[A], 2013 NY Slip Op 52104[U] [App Term, 9th and 10th Jud Dists 2013]; see also Yellow Book Sales & Distrib. Co., Inc. v On Call Plumbing & Heating, Inc., 99 AD3d 896 [2012]; Yellow Book of NY v DePante, 309 AD2d 859 [2003]; Herman v Ness Apparel Co., 305 AD2d 217 [2003]). As the Court of Appeals stated more than 50 years ago: "[i]n modern times most commercial business is done between corporations, everyone in business knows that an individual stockholder or officer is not liable for his corporation's engagements unless he signs individually, and where individual responsibility is demanded the nearly universal practice is that the officer signs twice — once as [*2]an officer and again as an individual" (Salzman Sign Co. v Beck, 10 NY2d 63, 67 [1961]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 19, 2015