S & K Distrib., LLC v Harrison Roofing & Tin Co., Inc.

[*1] S & K Distrib., LLC v Harrison Roofing & Tin Co., Inc. 2013 NY Slip Op 50452(U) Decided on March 29, 2013 Supreme Court, Nassau County Iannacci, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2013
Supreme Court, Nassau County

S & K Distribution, LLC., d/b/a NEW CASTLE BUILDING PRODUCTS, Plaintiff(s),

against

Harrison Roofing & Tin Co., Inc. AND KEN FUSCO, Defendant(s),



16934/11



PLAINTIFF ATTORNEY

Elizabeth Hoffmann, Esq.

The Law Firm of Elias C. Schwartz, PLLC

343 Great Neck Road

Great Neck, New York 11021

516-487-0175

fax 516-773-7706

DEFENDANT ATTORNEY

Sande E. Lichtenstein, Esq.

Lichtenstein & Schindel

158 West Boston Post Road

P.O. Box 787

Mararoneck, New York 10543

914-698-3313

Fax 914-698-3478

Angela G. Iannacci, J.

The motion by the defendants for an order, inter alia, granting them summary judgment dismissing the complaint in its entirety, is determined as follows:

This action arises from a purchase of construction materials from the plaintiff, S & K Distribution, LLC, d/b/a New Castle Building Products (New Castle), in the amount of $20,162.95. The materials were purchased under the account of the defendant, [*2]Harrison Roofing & Tin Co. Inc. (Harrison Roofing), and the account was supported by the personal guaranty of the defendant, Ken Fusco. Apparently, a former employee of Harrison Roofing, Richard Jankowski, ordered the materials under this account many years after his employment terminated at Harrison Roofing. Upon being presented with the bills for the subject material deliveries, Fusco objected and asserted that his company never ordered those materials. Fusco later learned that Jankowski had fraudulently placed those orders. In fact, Jankowski has already acknowledged the debt in a promissory note to New Castle. Nevertheless, New Castle commenced this action against Harrison Roofing and Fusco for payment on the orders placed by Jankowski claiming that Jankowski had the apparent authority to place the orders on behalf of Harrison Roofing. The defendants answered the complaint and asserted a counterclaim seeking damages for frivolous conduct.

The law is settled that "[o]ne who deals with an agent does so at his [or her] peril, and must make the necessary effort to discover the actual scope of authority" (ER Holdings, LLC v 122 WPR Corp., 65 AD3d 1275 [2d Dept. 2009]). Crucial to the existence of apparent authority are words or actions of the principal, communicated to the third-party, that indicate an appearance and reasonable belief that the agent has the authority to enter into the transaction (see Hallock v State, 64 NY2d 224 [1984]; 150 Beach 120th Street, Inc. v Washington Brooklyn Limited Partnership, 39 AD3d 722 [2d Dept. 2007]; Lindenbaum v Albany Post Prop. Assocs., Inc., 297 AD2d 661 [2d Dept. 2002]). "The agent cannot by his own acts imbue himself with apparent authority" (Hallock, supra, at 231).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that Jankowski had not worked for Harrison Roofing for may years and had no actual authority to make purchases on its account. In opposition, New Castle failed to submit sufficient evidence to create a triable issue of fact that it was reasonable to believe that Jankowski had the apparent authority to place the subject orders. Significantly, there is no indication that anyone at New Castle ever made an inquiry as to Jankowski's authority to order under this account (see Beizer v Bunsis, 38 AD3d 813 [2d Dept. 2007]; Fleet Bank v Consola, Riccitelli, Squadere Post No. 17 Inc., 268 AD2d 627 [3d Dept. 2000]). Indeed, a simple telephone call to Fusco prior to accepting the order would have avoided this situation completely.

Accordingly, the motion is granted to the extent that the complaint is dismissed in its entirety. To the extent that the defendants are seeking to recover damages for frivolous conduct pursuant to their counterclaim, it is denied and the counterclaim is dismissed. There is no separate action for damages based upon alleged frivolous conduct recognized in this state. The only remedy for a party who believes it has been the victim of frivolous conduct is to bring a motion pursuant to 22 NYCRR 130-1.1.

This constitutes the decision and order of the court.

Dated: March 29, 2013Angela G. Iannacci, J.S.C.

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