TMP Directional Mktg., LLC v Tetro

[*1] TMP Directional Mktg., LLC v Tetro 2009 NY Slip Op 51195(U) [23 Misc 3d 1139(A)] Decided on June 10, 2009 Mount Vernon City Ct Seiden, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 22, 2009; it will not be published in the printed Official Reports.

Decided on June 10, 2009
Mount Vernon City Ct

TMP Directional Marketing, LLC, Plaintiff,

against

Paul Tetro d/b/a Glass Doctor, Defendant.



419-08



To:L. Blake Morris, Esq.

Attorney for Plaintiff

1214 Cortelyou Road

Brooklyn, New York 11218-5404

Richard Weiss

Attorney for Defendant

481 Main Street

New Rochelle, New York 10553

Adam Seiden, J.

In this action to recover the balance due under a contractual agreement, defendant moves by Order to Show Cause dated November 18, 2008, to vacate the default judgment entered against him on March 14, 2008, and to stay the property execution filed with the County's Sheriff's Office. Plaintiff opposes the motion.

Plaintiff commenced this action against defendant on February 11, 2008, by substituted service. Plaintiff alleges that defendant individually contracted with plaintiff in August 2005, for a twelve month advertisement and listing of defendant's business, Glass Doctor, in two of plaintiff's Yellow Pages books. Plaintiff alleges that, despite the monthly bills plaintiff sent to defendant at the business address listed on the contract, defendant failed to make any payments. Plaintiff sought and obtained a default judgment for $15,656.65, against defendant and in favor of plaintiff. Defendant did not appear in the action.

Defendant moves to vacate the default judgment entered against him. He claims that: 1- he does not owe plaintiff's company any money; 2- he is not a proper party to the action because he has never done business as an individual with plaintiff; and 3-following a(n undocumented) conversation with plaintiff, he believed plaintiff would take no further legal action against him.

Plaintiff argues that: 1- defendant did not provide a reasonable excuse for his default; 2- the Order to Show Cause was unsupported by an affidavit alleging personal knowledge of the facts averred; 3-defendant did not provide a meritorious defense.A motion for leave to vacate a judgment entered upon a default may be granted if the movant establishes that its default was excusable and that it has a meritorious defense to the action. Barbagallo v. Nationwise Exterminating & Deodorizing, Inc., 260 AD2d 518 (2d Dept. 1999); Grutman v. Southgate at Bar Harbor Home Owners' Assn., 207 AD2d 526 (2d Dept. 1994). "The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the court." Id. at 527.

Here, the court finds that, under these circumstances, defendant has not [*2]demonstrated an excusable default. Plaintiff properly sued defendant as an individual. The contract that defendant signed was an agreement for services by plaintiff on behalf of defendant's business, Glass Doctor. Nowhere in that contract did defendant indicate he was signing on behalf of a corporation. Indeed, defendant signed only his name to the contract without adding "President" or some other designation that he was acting as a corporate officer. Nor did he correct the listing at the top of the contract to indicate that Glass Doctor was not an individual proprietorship, but a corporation. When an individual clearly acts on behalf of a disclosed entity, personal liability may not be imposed upon the individual. City University of NY v. Finalco, 93 AD2d 792, 793-94 (1s Dept. 1983) citing Keskal v. Modrakowski, 249 NY 406, 408 (1928). Here, defendant very specifically failed to disclosed his corporate identity from plaintiff resulting in his obtaining credit from plaintiff on that basis; as such defendant is now personally responsible for the claimed debt.

Defendant's refusal to insert facts into the contract of the parties demonstrating that he was operating on behalf of a corporation, and not as an individual, makes him personally responsible for this debt. Hollow Rd. Farms, Inc. v. Quo Vadis Intl., LLC., 31 AD3d 1023 (3d Dept. 2006) (corporate chair signed contract with consultant, in individual capacity, although contract purportedly was between consultant and corporate entity; chair held personally liable for debt). "The party seeking to pierce the corporate veil must ... establish that the controlling corporation abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against that party such that a court in equity will intervene." Anderson St. Realty Corp., v. RHMB New Rochelle Leasing Corp., 243 AD2d 595, 596 (2d Dept. 1997). Here, plaintiff has established that defendant perpetrated a wrong by failing to reveal to plaintiff the corporate nature of defendant's business in order to obtain credit for advertisement placed with plaintiff.

Defendant's motion to vacate the default judgment is denied. This constitutes the Court's Decision and Order. The Court considered the following papers on this motion: Order to Show Cause and Exhibits A-F, dated November 16, 2008; Affirmation in Opposition and Exhibits A-C, dated November 25, 2008; Reply Affirmation, dated December 4, 2008.

Dated:June 10, 2009

Mount Vernon, New York

___________________________________

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon [*3]

To:L. Blake Morris, Esq.

Attorney for Plaintiff

1214 Cortelyou Road

Brooklyn, New York 11218-5404

Richard Weiss

Attorney for Defendant

481 Main Street

New Rochelle, New York 10553