Itskov v Kreative Kabinetry, Inc.

[*1] Itskov v Kreative Kabinetry, Inc. 2005 NYSlipOp 51081(U) Decided on July 7, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
2004-1361 K C

Ilona Itskov, Appellant,

against

Kreative Kabinetry, Inc. and CAROLE BRANDT, Respondent.

Appeal by plaintiff from so much of a judgment of the Civil Court, Kings County (D. Silber, J.), entered on April 22, 2003, as dismissed the complaint.

Judgment unanimously modified by directing entry of judgment in favor of plaintiff in the sum of $6,000 against Kreative Kabinetry, Inc., only; as so modified, affirmed without costs.

In this action, plaintiff seeks to recover a deposit paid pursuant to a contract she entered into with Kreative Kabinetry, Inc. for the construction of cabinets. Pursuant to the terms of said agreement, the corporate defendant was entitled "to recover the full value of [the] work rendered to the date of termination, including fees earned, material and merchandise on order, any out-of-pocket expenses, and damages incurred." However, the corporate defendant failed to establish the value of same. The only evidence presented at trial was a bill from the corporate defendant for the services rendered but there was no testimony that the fees were customary and reasonable. Thus, plaintiff is entitled to a full refund in the sum of $6,000.

Contrary to the opinion of the court below, plaintiff is not barred from maintaining this action on the ground that the deposit was paid by a third-party corporation. It is uncontroverted that plaintiff executed the contract individually and not in a corporate capacity.

The action against Carole Brandt was properly dismissed since she was acting as an agent for a disclosed principal and she was not a party to the contract. [*2]
Decision Date: July 07, 2005