Advance Mag. Publs. Inc. v Mastour Galleries, Inc.
Annotate this CaseDecided on March 6, 2008
Civil Court of the City of New York, New York County
Advance Magazine Publishers Inc. d/b/a Conde Nast Publications, Plaintiff,
against
Mastour Galleries, Inc., Defendant.
047252/07
Samuel R. Grafton, Esq.
Popper & Grafton
225 West 34th Street
New York, NY 10122-1600
(212) 290-2630
Attorney for plaintiff
Scott Zarin, Esq.
Zarin & Associates P.C.
45 West 21st Street, 4th Floor
New York, NY 10010
(212) 580-3131
Cynthia S. Kern, J.
Plaintiff commenced the instant action to recover for an advertisement it ran for defendant. It moves for summary judgment on the ground that there are no triable issues of fact. As will be explained more fully below, the motion is denied on the ground that there are disputed factual issues as to whether Joseph Mastour had actual or apparent authority to place the advertisement for which plaintiff seeks recovery.
The relevant facts are as follows. On April 4, 2005, defendant placed a written order for an advertisement to run in the June 2005 issue of Architectural Digest at a cost of $10,112.45. The order was signed by Joseph Mastour and the order listed Joseph Mastour's title as manager. Defendant duly paid for the advertisement with a check signed by George Mastour, defendant's chief executive officer. On December 11, 2006, Joseph Mastour placed another written order for full page advertisements to be run in two issues of the magazine Architectural Digest at a rate of $10,618 per issue. The order listed the advertiser as "Mastour Galleries" and was again signed [*2]by Joseph Mastour with the title manager. Defendant has refused to pay for this advertisement on the ground that Joseph Mastour was not authorized to place this order on behalf of defendant.
There is clearly a disputed factual issue as to whether Joseph Mastour had actual authority to
place the advertisement in the magazine based on defendant's denial of that authority. The
remaining issue to be resolved is whether he had apparent authority to place the advertisement
based on the fact that he had previously placed an advertisement which the corporation had paid
for. The Court of Appeals has held laid out the legal standard for determining whether an agent
has apparent authority to bind the principal. Hallock v State of New York, 64 NY2d 224
(1984). In that decision , the Court of Appeals held that:
Essential to the creation of apparent authority are words or conduct of the principal,
communicated to a third party, that give rise to the appearance and belief that the agent possesses
authority to enter into a transaction. The agent cannot by his own acts imbue himself with
apparent authority. Rather, the existence of apparent authority depends upon a factual showing
that the third party relied upon the misrepresentation of the agent because of some misleading
conduct on the part of the principal-not the agent.'"(citations omitted). Moreover, a third party
with whom the agent deals may rely on the appearance of authority only to the extent that such
reliance is reasonable.
Id.at1181. The First Department has
held that the "issue of apparent authority presents what is inherently a fact determination" as a
determination must be made as to the state of mind of the person claiming reliance on the
apparent authority. Arol Development Corporation v Whitman & Ransom, 215 AD2d
145,146 (1st Dep't 1995).Moreover, the Fourth Department has specifically held that it is anissue
of fact as to whether the employee had apparent authority to bind the principal where the
employee had previously entered into similar contracts. McGuire v Parties, Picnics & Promotions,. 45 AD3d 1264 (4th
Dep't 2007).
In the instant case, there are disputed factual issues as to whether the employee Joseph Mastour had apparent authority to bind the corporation when he placed the advertisement. It is inherently a factual question whether plaintiff reasonably relied on the authority of Joseph Mastour to place the advertisement in the magazine based on his having placed one previous advertisement in the magazine which had been paid for. Therefore, summary judgment is inappropriate.
Based on the foregoing, plaintiff's motion for summary judgment is denied. This constitutes
the decision and order of the court.
Dated:Enter: __________________
J.C.C.
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