Budd-Morgan Central Station Alarm Co. Inc. v Jekyll & Hyde, Inc.

Annotate this Case

Download PDF

Budd-Morgan Central Station Alarm Co. Inc. v Jekyll & Hyde, Inc. 2011 NY Slip Op 33976(U) December 21, 2011 Supreme Court, New York County Docket Number: 603125/2009 Judge: Carol R. Edmead Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. INDEX NO. 603125/2009 [*FILED: NEW YORK COUNTY CLERK 12/27/2011 1] NYSCEF DOC. NO. 14 COURT OF THE STATE OF NEW YORK RECEIVED NYSCEF: 12/27/2011 SUPREME NEW YORK COUNTY PRESENT: z::-- [HON. CAROL EDMEAD ~. PART ~=2.~<....,.)- Justice Index Number: 603125/2009 BUDD-MORGAN CENTRAL STATION INDEX N O . - - - - MOTION DATE _ _ _ __ JEKYLL MOTION SEQ. NO. - - - I No(s). _ _ _ _ __ INo(s). - - - - - 1No(s). _ _ _ _ __ Motion sequence 001 is decided in accordance with the annexed Memorandum Decision. It is hereby ORDERED that the motion of defendant Glen Falcone to dismiss the complaint herein is granted and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further ORDERED that the action is severed and continued against the remaining defendant; and it is further ORDERED that counsel for defendants shall serve a copy of this order with notice of entry within twenty (20) days of entry on counsel for plaintiff. Dated: t/2. C:U-cJoll AD 1. CHECK ONE:..................................................................... 0 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 NON-FINAL DISPOSITION CASE DISPOSED 0 DENIED ODO NOT POST 0 GRANTED IN PART 0 SETTLE ORDER 0 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 35 -------------------------------------x Budd-Morgan Central Station Alarm Company Inc., Plaintiff, Index Number: -againstJekyll & Hyde, Glen Falcone, 603125/2009 Inc. and Defendants. -----------------------------------x Carol R. Eclmead, J: Defendant Glen Falcone moves pursuant to CPLR 3211 (a) to dismiss the complaint as against him. (7) For the reasons set forth below, this motion is granted. Parties and Their Allegations Plaintiff is a New York corporation that, on May 15, 2007, entered into a written contract (the Contract) for burglar alarm materials and monthly servicing (complaint, ~~ 1, 4) and it alleges that, as of June 23, 2009, defendants breached the Contract by failing to make payments due and owing under it, leaving a balance due in the sum of $72,981.10 (id., ~~ 4-6). Falcone is the manager of the restaurant owned by defendant Jekyll & Hyde, Inc. (the Company) (Falcone affidavit, ~ 1). He states that he signed the Contract for burglar alarm services on the Company's behalf in his capacity as manager, that he was not advised that there was a contractual provision purportedly imposing personal liability and that he had no intention to [* 3] assume any personal liability for the Company's debts 3, (id., ~~ 2- 7) . Plaintiff contends that, since Falcone admits signing the Contract and the Contract contains a provision imposing personal liability, he is bound by these contractual terms and his motion should, therefore, be denied. Dismissal Standard In determining a motion to dismiss pursuant to CPLR 3211, the court must accept the facts as alleged in the complaint as true, accord them every possible favorable inference and determine whether the facts as alleged fit within any cognizable legal theory (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]). Dismissal based upon documentary evidence is appropriate only where the "documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]). However, allegations that are bare legal conclusions or are inherently incredible, or that are flatly contradicted by the documentary evidence, are not accorded such favorable inferences, and need not be accepted as true (Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000]) . The Contract and the Personal Liability Provision Generally, "agreements are construed in accordance with the 2 [* 4] intent of the parties and the best evidence of the parties' intent is what they express in their written contract" (Goldman v White Plains Ctr. [2008]). for Nursing Care, LLC, 11 NY3d 173, 176 In this case, the Contract is form agreement, drafted by plaintiff on its letterhead, and it identifies the customer as the Company. Falcone signed on the pre-printed signature lines for the customer. The personal liability provision is in an unnumbered paragraph and is the last sentence above the signature line. It states that "[t]he undersigned agrees to be personally liable for all obligations incurred with respect to this contract." The general rule is that a person who signs a contract as an officer on behalf of a corporation is not personally liable, unless there is clear and explicit evidence of his intention to bind himself personally (Georgia Malone & Co., Inc. v Rieder, 86 AD3d 406, 408 [1st Dept 2011]; Weinrib v Stinchfield, 19 AD3d 482 [2d Dept 2005]). This is so because in a modern commercial context "[t]here is great danger in allowing a single sentence in a long contract to bind individually a person who signs only as a corporate officer [and, consequently, there must be] some direct and explicit evidence of actual intent" (Salzman Sign Co. v Beck, 10 NY2d 63, 67 [1961]). The inclusion of a single sentence purporting to bind an agent personally is insufficient to establish such intent (id.; Herman v Ness Apparel Co., 305 3 [* 5] AD2d 217, 218 [1st Dept 2003]). Moreover, plaintiff does not dispute that "the intended party [to the Contract with it] was the corporation" rather than Falcone individually (Newman v Berkowitz, 50 AD3d 479, 480 [1st Dept 2008]) and reading the Contract's provisions "not in isolation, but in the context of the instrument as a whole" (150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1, 5 [1st Dept 2004]), plaintiff has not shown "the requisite clear and unequivocal evidence ... that [the individual] intended to assume such a liability" (Savoy Record Co. v Cardinal Export Corp., NY2d 1, 7 [1964]; Weinrib, 19 AD3d at 483; Herman, 15 305 AD2d at 218 [1st Dept 2003]). Since plaintiff has not shown that Falcone intended to assume the liability of the Company, his motion to dismiss the complaint as against him is granted. Order It is, therefore, ORDERED that the motion of defendant Glen Falcone to dismiss the complaint herein is granted and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further 4 [* 6] ORDERED that the action is severed and continued against the remaining defendant; and it is further ORDERED that counsel for defendants shall serve a copy of this order with notice of entry within twenty (20) days of entry on counsel for plaintiff. Dated: December 21, 2011 J.S.C. 'HON.CAROLEDMEAD 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.