| Wiernik v Kurth |
| 2009 NY Slip Op 01111 [59 AD3d 535] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Peter H. Wiernik et al., Respondents, v Peter C. Kurth etal., Defendants, and Paula Rudofsky, Appellant. |
—[*1] McCarthy Fingar LLP, White Plains, N.Y. (Robert H. Rosh of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract and fraudulent inducement,the defendant Paula Rudofsky appeals, as limited by her notice of appeal and brief, from somuch of an order of the Supreme Court, Westchester County (Rudolph, J.), entered November27, 2007, as denied that branch of the defendants' motion pursuant to CPLR 3211 (a) (1) and (7)which was to dismiss the complaint insofar as asserted against her.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was to dismiss the complaint insofar as asserted againstthe defendant Paula Rudofsky is granted.
The plaintiffs, as homeowners, entered into an architectural services contract with thedefendant P.C.K. Design Studio, Inc. (hereinafter PCK), care of the defendant Peter C. Kurth, asthe architect, pursuant to which the architect agreed to perform architectural services inconnection with certain renovations (hereinafter the project) to be made at the plaintiffs' home inChappaqua (hereinafter the subject property). The architectural services contract was signed bythe plaintiffs and Kurth for PCK.
The plaintiffs also entered into a separate construction contract with the defendant DesignWorks Construction, Inc. (hereinafter Design Works), care of the defendant Peter C. Kurth, asthe contractor, pursuant to which the contractor agreed to provide certain construction services inconnection with the project. The construction contract was signed by the plaintiffs and Kurth, as[*2]president of Design Works. The construction contract listedthe defendant Peter C. Kurth Office of Architecture & Planning, P.C. (hereinafter the Office), asthe architect, and the bid form attached thereto as exhibit "A" also was addressed to the Office.
Thereafter, the defendants allegedly failed to perform work in accordance with thearchitectural services contract and the construction contract and the plaintiffs commenced thisaction against, among others, PCK, the Office, and, in their individual capacities, Kurth and thedefendant Paula Rudofsky (hereinafter the appellant), who was employed as an office managerby the Office. The complaint alleged, inter alia, breach of contract and fraudulent inducement.Subsequently, the defendants moved pursuant to CPLR 3211 (a) (1) and (7) to dismiss thecomplaint insofar as asserted against, among others, Kurth and the appellant. The SupremeCourt, inter alia, denied that branch of the motion which was to dismiss the complaint insofar asasserted against the appellant.
Contrary to the plaintiffs' contentions, the documentary evidence submitted in support of thedefendants' motion, consisting, inter alia, of Kurth's affidavit and the appellant's W-2 forms, wassufficient to demonstrate that the appellant was employed by the Office as an office manager andthat any work she performed concerning the project was pursuant to that employment. Inaddition, Kurth clearly possessed personal knowledge (see generally Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman &Dicker, LLP, 38 AD3d 34, 46 [2006]) of the appellant's employment status since he wasthe president of the entity which employed her.
To the extent the complaint alleges that the work performed under the contracts wasperformed in a less than skillful and workmanlike manner, it states a cause of action to recoverdamages for breach of contract, not negligence (see Westminster Constr. Co. v Sherman,160 AD2d 867, 868 [1990]). Accordingly, where, as here, the gravamen of the complaint isbreach of contract for substandard or incomplete work, the allegations merely sounded in breachof contract (see Albstein v Elany Contr.Corp., 30 AD3d 210 [2006]).
Further, persons may not be held personally liable on contracts of their corporations,provided they did not purport to bind themselves individually under such contracts (seeWestminster Constr. Co. v Sherman, 160 AD2d 867 [1990]; Robinson v ParamountPictures Corp., 112 AD2d 208 [1985]; Steelmasters, Inc. v Household Mfg. Co., 40AD2d 963 [1972]). Since the appellant was neither a party nor signatory to either thearchitectural services contract or the construction contract, she cannot be held personally liablefor any cause of action alleging breach of contract (see Westminster Constr. Co. v Sherman,160 AD2d 867, 868 [1990]).
Similarly, to the extent that the plaintiffs allege that the appellant prepared inflated orfictitious invoices, those alleged acts also constituted breach of contract claims insofar as theywere pleaded as an element of the breach of contract causes of action emanating from thepurported failure of the corporate entities to perform in accordance with the subject contracts,thereby earning "unjustified fees" (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70NY2d 382, 389 [1987]; Novelty CrystalCorp. v PSA Institutional Partners, L.P., 49 AD3d 113, 119 [2008]). Moreover, therewas no allegation that the appellant knowingly participated in any fraudulent scheme toovercharge the plaintiffs or to convert their payments (see e.g. AMF Inc. v Algo Distribs.,48 AD2d 352 [1975]).
In addition, the allegations in the complaint alleging that the plaintiffs were fraudulentlyinduced to enter the subject contracts were solely based upon purported misrepresentations madeby Kurth regarding, inter alia, his qualifications as an architect. None of the allegations regarding[*3]fraudulent inducement indicated that the appellant made anyrepresentations, false or otherwise, that induced the plaintiffs to enter into the subject contracts(see Rothstein v Equity Ventures, 299 AD2d 472 [2002]).
Accordingly, the Supreme Court should have granted that branch of the defendants' motionpursuant to CPLR 3211 (a) (1) and (7) which was to dismiss the complaint insofar as assertedagainst the appellant. Rivera, J.P., Skelos, Angiolillo and Balkin, JJ., concur.