Gennaro v Ezair

[*1] Gennaro v Ezair 2014 NY Slip Op 51768(U) Decided on December 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570782/14

Irene Gennaro, Plaintiff-Respondent,

against

Khedouri Ezair, Defendant-Appellant.

Defendant appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered on or about March 17, 2014, after trial, in favor of plaintiff and awarding her damages in the principal sum of $900.

Per Curiam.

Judgment (Andrea Masley, J.), entered on or about March 17, 2014, reversed, without costs, and judgment directed in favor of defendant dismissing the action.

No basis was shown to impose liability upon the sole named defendant herein, Khedouri Ezair, for breach of a contract entered into between plaintiff and nonparty Ezair Gallery ("Gallery"). Significantly, the only person signing the contract on behalf of the Gallery was one Marijana Bego ("Bego"); defendant was neither a signatory nor a party to the agreement (see Birch v McGhee, 79 AD3d 1296, 1297 [2010]). Plaintiff's contention that defendant and Bego were "business partners" in the Gallery was not established by competent evidence (see generally Czernicki v Lawniczak, 74 AD3d 1121, 1130-1131 [2010]; Community Capital Bank v Fischer & Yanowitz, 47 AD3d 667, 668-669 [2008]; see also Rolleck v Gerald Modell, Inc., 169 Misc 2d 663, 665 [1996]), and, even if established, would be insufficient to support a breach of contract award against defendant individually, in view of plaintiff's failure to join the partnership as a party defendant or to demonstrate that the partnership is insolvent or unable to pay its obligations (see Rose v Green, 145 AD2d 618, 622 [1988], appeal dismissed 74 NY2d 836 [1989]; Helmsley v Cohen, 56 AD2d 519 [1977]). Thus, dismissal of the small claims action achieves "substantial justice" consistent with substantive law principles (CCA 1807). Our dismissal is without prejudice to plaintiff's right, if so advised, to commence an action against the proper defendant(s).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 17, 2014