| Stern v H. DiMarzo, Inc. |
| 2010 NY Slip Op 07327 [77 AD3d 730] |
| October 12, 2010 |
| Appellate Division, Second Department |
| James Stern, Appellants-Respondents, v H. DiMarzo, Inc., etal., Respondents-Appellants. (And a Third-Party Action.) |
—[*1] Friedman, Harfenist, Kraut & Perlstein, LLP, Lake Success, N.Y. (Steven J. Harfenist andAndrew C. Lang of counsel), for respondents-appellants.
In an action, inter alia, to recover damages for breach of contract and unjust enrichment, theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, WestchesterCounty (Scheinkman, J.), dated December 8, 2009, as granted those branches of the defendants'motion which were for summary judgment dismissing the first and third causes of action in the amendedverified complaint insofar as asserted against the defendants Harry DiMarzo and Joseph Duffy, and thedefendants cross-appeal from stated portions of the same order.
Ordered that the cross appeal is dismissed as withdrawn; and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondents-appellants.
"[P]ersons may not be held personally liable on contracts of their corporations, provided they didnot purport to bind themselves individually under such contracts" (Wiernik v Kurth, 59 AD3d 535, 537 [2009]; see Maranga v McDonald & T. Corp., 8AD3d 351, 352 [2004]; Westminster Constr. Co. v Sherman, 160 AD2d 867, 868[1990]). Furthermore, "[o]fficers, directors or employees of a corporation do not become liable to onewho has contracted with the corporation for inducing the corporation to breach its contract merelybecause they have made decisions and taken actions that resulted in the corporation's breaching itscontract" (Citicorp Retail Servs. v Wellington Mercantile Servs., 90 AD2d 532, 532 [1982];see Murtha v Yonkers Child Care Assn., 45 NY2d 913, 915 [1978]; Joan Hansen & Co.v Everlast World's Boxing Headquarters Corp., 296 AD2d 103, 108-109 [2002]; First Bankof Ams. v Motor Car Funding, 257 AD2d 287, 294 [1999]; Greyhound Corp. v CommercialCas. Ins. Co., 259 App Div 317, 319 [1940]; see also 14A NY Jur 2d, BusinessRelationships § 779). "[W]hen an officer or director acts on behalf of his [or her] corporation, he[or she] may not be held liable for inducing [the] corporation to violate its contractual obligations unlesshis [or her] activity involves separate tortious conduct or results in personal profit" (Di Nardo v L &W Indus. Park of Buffalo, 74 AD2d 736 [1980]; [*2]seeRobbins v Panitz, 61 NY2d 967, 969 [1984]; Murtha v Yonkers Child Care Assn., 45NY2d at 915; Britvan v Sutton & Edwards, 226 AD2d 490, 491 [1996]; CourageousSyndicate v People-To-People Sports Comm., 141 AD2d 599, 600 [1988]; Citicorp RetailServs. v Wellington Mercantile Servs., 90 AD2d at 532; Rothschild v World-WideAutomobiles Corp., 24 AD2d 861 [1965], affd 18 NY2d 982 [1966]; Buckley v 112Cent. Park S., Inc., 285 App Div 331, 334 [1954]).
The defendants Harry DiMarzo and Joseph Duffy (hereinafter together the defendants)demonstrated their prima facie entitlement to judgment as a matter of law dismissing the first cause ofaction alleging breach of contract insofar as asserted against them. In opposition, the plaintiffs failed toraise a triable issue of fact (see Murtha v Yonkers Child Care Assn., 45 NY2d at 915;Joan Hansen & Co. v Everlast World's Boxing Headquarters Corp., 296 AD2d at 108-109;Britvan v Sutton & Edwards, 226 AD2d at 491; Courageous Syndicate vPeople-To-People Sports Comm., 141 AD2d at 600; Citicorp Retail Servs. v WellingtonMercantile Servs., 90 AD2d at 532; Di Nardo v L & W Indus. Park of Buffalo, 74 AD2d736 [1980]; Rothschild v World-Wide Automobiles Corp., 24 AD2d at 861). Accordingly,the Supreme Court properly awarded summary judgment dismissing the cause of action alleging breachof contract insofar as asserted against the defendants (see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]).
The defendants also demonstrated their prima facie entitlement to judgment as a matter of lawdismissing the third cause of action alleging unjust enrichment insofar as asserted against them. Since theplaintiffs failed to raise a triable issue of fact in opposition, the Supreme Court properly awardedsummary judgment dismissing the cause of action alleging unjust enrichment insofar as asserted againstthe defendants (see Old Republic Natl. Tit.Ins. Co. v Luft, 52 AD3d 491, 491 [2008]; Citibank, N.A. v Walker, 12 AD3d 480, 481 [2004]). Covello, J.P.,Leventhal, Hall and Roman, JJ., concur.