Jack v Restoration Dynamic, Inc.

[*1] Jack v Restoration Dynamic, Inc. 2014 NY Slip Op 50477(U) Decided on March 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and SOLOMON, JJ
2012-740 K C.

Dean Jack, Appellant,

against

Restoration Dynamic, Inc. Doing Business as CREATIVE HOME DESIGN Also Known as CREATIVE HOME DESIGN, INC., Defendant, -and- CRAIG SPIEGEL, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol R. Feinman, J.), entered February 22, 2012. The order, insofar as appealed from, granted defendant Craig Spiegel's motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

As relevant to this appeal in this action for breach of contract, fraud, and fraudulent misrepresentation, arising out of a written home repair agreement, defendant Craig Spiegel, who signed the contract on behalf of defendant Creative Home Design, Inc. (Creative), moved for summary judgment dismissing the complaint insofar as asserted against him, contending that he could not be held individually liable since he was an agent acting on behalf of a corporate entity. Plaintiff opposed the motion. The Civil Court granted Spiegel's motion for summary judgment dismissing the complaint insofar as asserted against him.

Contrary to plaintiff's contention, Spiegel's motion for summary judgment dismissing the complaint insofar as asserted against him was supported by evidence in admissible form. The unsigned but certified deposition transcript of Spiegel, which was submitted in support of his motion, was admissible since it was submitted by the party deponent himself and, accordingly, that transcript was adopted as accurate by him (see Pavane v Marte, 109 AD3d 970 [2013]; David v Chong Sun Lee, 106 AD3d 1044 [2013]; Vetrano v J. Kokolakis Contr., Inc., 100 AD3d 984 [2012]; Rodriguez v Ryder Truck, Inc., 91 AD3d 935 [2012]; Ashif v Won Ok Lee, 57 AD3d 700 [2008]). Thus, Spiegel's deposition transcript was properly used as fully as though it were signed (see CPLR 3116 [a]). Furthermore, plaintiff did not raise any challenges to the accuracy of the transcript.

A contract negotiated by an agent for a known principal does not become the contract of the agent simply because he signs his own name without taking the precaution to tell the other party to the contract that he is acting for his principal, which fact is already fully understood (see I. Kaszirer Diamonds v Zohar Creations, 146 AD2d 492 [1989]). A fortiori, absent proof of a contrary intention, an agent should not be held personally liable where the principal is not only mentioned in the contract but appears to be the party intended to perform the service that is the subject of the contract (see Weinrebv Stinchfield, 19 AD3d 482 [2005]; Leonard Holzer Assoc. v Orta, 250 AD2d 737 [1998]). Here, the record demonstrates that plaintiff, the party alleging personal liability on Spiegel's part, failed to offer clear and explicit evidence of Spiegel's intention to be personally bound by the contract (see Savoy Record Co. v Cardinal Export Corp., [*2]15 NY2d 1, 4 [1964]; Peckham Rd. Corp. v Town of Putnam Val., 218 AD2d 789 [1995]), particularly since Spiegel testified at his deposition that it was not his duty as a public insurance adjuster to ensure that the repairs were performed properly and since the agreement, which was drafted on a letterhead containing Creative's name, provided that Creative would perform the repairs. Thus, the plain language of the agreement established that Spiegel was acting as an agent for Creative and, as an agent, Spiegel was not susceptible to personal liability without a piercing of the corporate veil (see Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 140-141 [1993]; Damianos Realty Group, LLC v Fracchia, 35 AD3d 344 [2006]; Seuter v Lieberman, 229 AD2d 386 [1996]), which the Civil Court, as a court of limited jurisdiction, lacks jurisdiction to do (see 19 W. 45th St. Realty Co. v Doram Elec. Corp., 233 AD2d 184 [1996]; Wieder v Stimler, 18 Misc 3d 137[A], 2008 NY Slip Op 50284[U] [App Term, 2d, 11th & 13th Jud Dists 2008]). Therefore, the cause of action alleging breach of contract was properly dismissed by the Civil Court as against Spiegel. Additionally, the causes of action alleging fraud and fraudulent misrepresentation were properly dismissed as against Spiegel since they were not pleaded in the complaint with specificity nor were instances of such conduct by Spiegel specified in plaintiff's opposition to Spiegel's motion for summary judgment (see CPLR 3016 [b]; Stein v Doukas, 98 AD3d 1024 [2012]).

Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014