Newsday, Inc. v Nelkenbaum
Annotate this CaseDecided on June 23, 2005
Civil Court, Kings County
Newsday, Inc., Plaintiff,
against
Yuddy Nelkenbaum, d/b/a Children's Education Network, Defendant.
303823/03
Arlene P. Bluth, J.
Upon the foregoing cited papers[FN1] and after argument, the defendant's motion to vacate the denial of his summary judgment judgment motion based on his default in appearing on the return date, to restore the motion to the calendar and, upon restoration, to award defendant summary [*2]judgment, is granted for the following reasons.
Defendant's motion for summary judgment was originally returnable on May 17, 2005. On that date, plaintiff appeared, but defendant did not. Therefore, defendant's motion was denied. To vacate the decision denying his motion, defendant must demonstrate a reasonable excuse for his default and that he has a meritorious defense. See Low Surgical & Medical Supply, Inc. v. McAfee, 789 NYS2d 896, 2005 NY Slip Op 01326 [2nd Dept]. Defendant has demonstrated a reasonable excuse for his default; namely, defendant's counsel, a solo practitioner, was seriously ill with cardiac problems at the time too ill even to call opposing counsel to ask for an adjournment. Since defendant's papers also demonstrate that he has a meritorious defense, defendant is entitled to summary judgment as a matter of law.[FN2]
Plaintiff, a newspaper publisher, brought this action to recover payment for certain advertisements. Defendant asserts that he was always acting on behalf of non-party Mirrer Yeshiva ("the Yeshiva"), a tax-exempt, religious educational institution, when he arranged for plaintiff to print advertisements on a periodic basis promoting the Yeshiva's automobile donation program. This program solicited used cars in exchange for charitable donation receipts that would translate into tax deductions for the donors. Defendant asserts that he was merely a hired hand, an agent of the Yeshiva with respect to that donation program, and thus is not personally liable for the Yeshiva's debts. Defendant also alleges that the unpaid advertisements where not authorized by him and were published after he terminated the program in September 2002 at the Yeshiva's direction.
In opposition, plaintiff does not dispute that the ads sued upon were printed without authorization or that they were printed after defendant canceled them. Nor does plaintiff show any proof that defendant was anything more than the Yeshiva's representative. The original contract, apparently produced by plaintiff in discovery and appended to defendant's motion, lists "Mirrer Yeshiva" as "Advertiser," and "Yuddy Nelkenbaum, Secratery [sic]" as the actual signer. Even though Mr. Nelkenbaum denies that he signed the contract, or that he was ever Secretary of the Yeshiva, even if he did sign it and he was the Secretary, he still would not be personally liable for the charges. It is uncontested that the contract was with the Yeshiva, not with defendant, that plaintiff addressed its bills to "Mirrer Yeshiva/Yuddy Nelkenbaum" and that the [*3]printed advertisements referred to the "Mirrer Educational Institute" and did not mention defendant. Defendant alleges, and plaintiff does not contest, that those of plaintiff's bills that are not part of this suit were paid by Yeshiva checks, except for a few occasions when plaintiff required prepayment or immediate payment and defendant used his personal credit card and then received reimbursement from the Yeshiva.
Further, plaintiff does not contest defendant's proof that he is not, as the caption suggests, "doing business as the Children's Education Network." The caption was created in July 2003, when the summons and complaint were prepared. Defendant submits a copy of plaintiff's interrogatory responses in which plaintiff admits that its basis for alleging that defendant is "doing business as the Children's Educational [sic] Network" is that the toll-free phone number used in the advertisements is for that name. However, defendant submits documentary proof that in December 2002, more than six months before the complaint was ever drafted, Congregation Eshel Avraham, for which defendant is now running a similar automobile donation program, registered "Children's Education Network" as its assumed name with the New York Secretary of State.
"When 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, NYLJ, June 20, 2005 at 35, col 5, 2005 NY Slip Op 05057 [2nd Dept]; see also Peckham Rd. Corp. v. Town of Putnam Valley, 218 AD2d 789, 790-91, 631 NYS2d 172 [2nd Dept 1995]; New York Assn. for Retarded Children, Inc. v. Keator, 199 AD2d 921, 923, 606 NYS2d 784, 785 [3rd Dept 1993]; Sargoy v. Wamboldt, 183 AD2d 763, 766, 583 NYS2d 488 [2nd Dept 1992]; Aces Mechanical Corp. v. Cohen Bros. Realty & Constr. Corp., 136 AD2d 503, 504, 523 NYS2d 824, 826 [1st Dept 1988]. In opposing defendant's motion, plaintiff has shown no such clear and explicit evidence of the defendant's intention to be personally bound. Rather, plaintiff submits the same affidavit as it submitted in opposition to defendant's original motion, wherein Cathy Montavano, an employee of plaintiff, states that defendant was the prime and indeed, the only contact she and plaintiff had with respect to the publishing of these advertisements.
According to Ms. Montavano, "I was never led to believe that there was some other person over Mr. Nelkenbaum that I should deal with regarding the placing of ads and payment." That is immaterial. Both Mr. Nelkenbaum and Ms. Montavano were at all times clearly operating as agents; he of the Yeshiva and she of the newspaper. The fact that Ms. Montavano, plaintiff's employee, alleges that defendant was the only person plaintiff ever communicated with on this account does not mean that defendant was personally liable for these charges any more than Ms. Montavano would be personally responsible for any misprints in the ad itself.
Pursuant to CPLR § 3212(b), the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 [1986]. In light of such a showing, [*4]if the party opposing the motion comes forward with evidence of issues of fact requiring a trial, the motion will be denied. See Rebecchi v. Whitmore, 172 AD2d 600, 568 NYS2d 423 [2nd Dept 1991]. A party opposing a motion for summary judgment must assemble and lay bare affirmative proof in admissible form to demonstrate the existence of a genuine triable issue of fact. See Shaw v. Time Life Records, 38 NY2d 201, 207, 379 NYS2d 390 [1975]; Spearman v. Times Square Stores, Inc. 96 AD2d 552, 553, 465 NYS2d 230, 232 [2nd Dept 1983].
Because plaintiff has failed to raise any triable issues of fact, summary judgment is granted to the defendant and the complaint is dismissed.
This is the Decision and Order and Judgment of the Court.
Dated: June 23, 2005
ARLENE P. BLUTH
Judge, Civil Court
Footnotes
Footnote 1: In his moving papers, defendant includes a reply affidavit, alleging that plaintiff's opposition to defendant's original motion was served late, and therefore defendant never had an opportunity to submit a reply. Because plaintiff does not dispute that allegation, the Court has considered the reply papers in deciding this motion.
Footnote 2:Although the issue is not raised by plaintiff, the Court notes that its decision here is not inconsistent with Brill v. City of New York, 2 NY3d 648, 781 NYS2d 261 [2004]. In Brill, the Court of Appeals held that a trial court may not entertain even a meritorious late summary judgment motion one filed more than120 days after the filing of the note of issue, the time limit prescribed in CPLR § 3212(a) without a showing of good cause for the delay. Id. Defendant's motion for summary judgment was timely filed (the Notice of Trial is dated September 21, 2004, and the motion was made on January 4, 2005). Defendant's counsel's illness constitutes good cause for not having his motion heard on its original return date, and because of the circumstances, this Court is considering the instant motion, with all the same papers, nunc pro tunc.
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