Brooklyn Union Gas Co. v Gorgerman
Annotate this CaseDecided on July 15, 2004
Civil Court of the City of New York, Kings County
BROOKLYN UNION GAS COMPANY d/b/a KEYSPAN ENERGY DELIVERY NEW YORK, Plaintiff,
against
ISAAC GORGERMAN a/k/a ISAAC GOGERMAN, Defendant.
042555/03
Loren Baily-Schiffman, J.
Plaintiff KeySpan commenced this action against Defendant Isaac Gorgeman a/k/a Isacc Gogerman to recover $2,476.23 for unpaid gas service from March 13, 2000 until August 30, 2002. Gogerman's Attorney-In-Fact and mother-in-law, Renay Ross, answered this action in person on his behalf. On July 27, 2000 Ross signed a Residential Customer Deferred Payment Agreement. The agreement lists Isaac Gorgeman as the customer at the top of the document. The document states that it is an agreement to make monthly payments for past due amounts. The agreement goes on to say that $1,512.62 is owed and will be paid in the following way: a down payment of $226.89 and then ten monthly installments of $128.57. KeySpan argues that by signing this document Renay Ross assumed the debt owed to them by Isaac Gogerman and is now personally liable for the unpaid balance of the bill. In Motion Part 34 on March 19, 2004, Judge Hinds-Radix adjourned the case and directed Plaintiff to make a motion to add a party. KeySpan now seeks to add Ross as a party defendant on the basis that she breached the Deferred Payment Agreement.
Renay Ross was granted a Durable General Power of Attorney March 26, 2003 and is permitted by New York General Obligations Law, Article 5, Title 15, §5-1502H(1) to assert any defense which the principal has or claims to have before any court. The underlying issue in this matter is whether Renay Ross assumed Isaac Gogerman's debt to KeySpan by signing the Residential Customer Deferred Payment Agreement thus making her personally liable. In order for Renay Ross to be properly added as a party, KeySpan must be able to assert a meritorious claim against her.
Where, as here, an individual who has a power of attorney appears throughout the whole transaction as an agent, acting for a disclosed principal, he does not bind himself by the [*2]agreement. Ernst v. Thom, 119 N.Y.S. 631 (1909). When the clear and unambiguous language of the document indicates that the defendant signed as an agent for a disclosed principal, and, there is no explicit evidence of her intent to be bound, she cannot be held personally liable. Tender Loving Care Agency, Inc. v. Roman Hladun, 1985 N.Y. App. Div. LEXIS 44083 (2nd Dept. 1985). An agent for a disclosed principal "will not be personally bound unless there is clear and explicit evidence of the agent's intention to substitute or superadd his personal liability for, or to, that of his principal." Savoy Record Company, Inc. v. Cardinal Export Corp., 254 N.Y.S.2d 521 (1964). An agent assumes no personal liability in executing a contract for a disclosed principal, unless it is clear that the agent intends to be bound personally. Memorial Hospital v. Beverly Bauman, 474 N.Y.S.2d 636 (3rd Dept. 1984). Here, Renay Ross simply signed the bottom of the document as an agent for a disclosed principal, Isaac Gogerman. There is absolutely no showing of intent on her part to assume the obligations of Gogerman to KeySpan. Renay Ross is not personally liable for the debt owed to KeySpan by Isaac Gogerman.
Accordingly, Plaintiff's motion to amend their complaint and to add Renay Ross as a party defendant is denied.
This constitutes the Decision and Order of this Court.
Dated: July 15, 2004
____________________________
LOREN BAILY-SCHIFFMAN
J.C.C.
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