KLM Holdings, Inc. v Argudo

[*1] KLM Holdings, Inc. v Argudo 2011 NY Slip Op 51368(U) Decided on July 21, 2011 District Court Of Nassau County, First District Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2011
District Court of Nassau County, First District

KLM Holdings, Inc., Petitioner(s)

against

Victor Argudo and ELVILANOTO RISTORANTE, LLC, Respondent(s)



LT-002070-11

 

Law Office of William J. McLaughlin, Attorneys for Petitioner, 81 Hempstead Avenue, Lynbrook, New York 11563, 516-599-6000; The Law Offices of Ira S. Newman, Attorneys for Respondents, 98 Cutter Mill Road, Suite 441 South, Great Neck, New York 11021, 516-487-7375.

Scott Fairgrieve, J.

Petitioner, KLM Holdings, LLC (hereinafter "Petitioner") has brought a non-payment petition against Elvilanoto Ristorante, LLC and Victor Argudo's (hereinafter "Respondent"). Respondent, moves for summary judgment dismissing the petition against him.

Petitioner entered into a lease with Elvilanoto Ristorate, LLC signed by Respondent. Petitioner argues language contained in the rider to the lease render Respondent personally liable.

It appears to this court Respondent signed the lease as an agent of Elvilanoto [*2]Ristorante, LLC and not as an individual. "[W]here individual responsibility is demanded the nearly universal practice is that the officer signs twice once as an officer and again as an individual."Salzman Sign Co. v. Beck 10 NY2d 63, 67 (NY 1961). Respondent signed both the lease in question and the rider to the lease only once, as the agent for Elvilanoto Ristorante, LLC.

"... [T]he courts should refrain from foisting [the obligation of guarantor] on a party be he an individual or corporation, who simply signs as agent, absent the requisite clear and unequivocal evidence to be gathered from the writing itself, the he intended to assume such a liability." Savoy Record Co. v. Cardinal Export Corp., 15 NY2d 1, 7

Even if Victor Argudo had signed as a guarantor, the District Court does not have jurisdiction over guarantors, as a landlord tenant relationship has not been established between the parties. NYPRAC-LT §4:231 citing; Phoenix Industries, Inc. v. Ultimate Sports, LLC, 19 Misc 3d 129(A), 859 N.Y.S.2d 906 (App. Term 2008)

; Realty Equity Holdings 3820, LLC v. DeVito Furniture Corp., 1 Misc 3d 129(A), 781 N.Y.S.2d 627 (App. Term 2003) ("[G]uarantor's are not proper parties in a summary proceeding.").

For the foregoing reasons, respondent Victor Argudo's motion to dismiss the Petition against him is hereby granted.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:July 21, 2011