| Yellow Book Sales & Distrib. Co., Inc. v Mantini |
| 2011 NY Slip Op 05490 [85 AD3d 1019] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Yellow Book Sales and Distribution Company, Inc.,Respondent, v Paul W. Mantini et al., Appellants. |
—[*1] Concetta G. Spirio, Sayville, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal from(1) an order of the Supreme Court, Nassau County (Galasso, J.), dated November 7, 2009, whichdenied their motion for summary judgment dismissing the complaint insofar as asserted againstthe defendant Paul W. Mantini, and granted the plaintiff's cross motion for summary judgment onthe complaint, and (2) a judgment of the same court entered January 23, 2010, upon the order,which is in favor of the plaintiff and against them in the total sum of $394,841.53. The notice ofappeal from the order is deemed also to be a notice of appeal from the judgment (seeCPLR 5501 [c]).
Ordered that the appeal from the order is dismissed, without costs or disbursements; and it isfurther,
Ordered that the judgment is modified, on the law, by deleting the provision thereofawarding judgment in favor of the plaintiff and against the defendant Paul W. Mantini; as somodified, the judgment is affirmed, without costs or disbursements, so much of the order asgranted those branches of the plaintiff's cross motion which were for summary judgment on thefourth and fifth causes of action against the defendant Paul W. Mantini is vacated, those branchesof the plaintiff's motion which were for summary judgment on the fourth and fifth causes ofaction are denied, and the matter is remitted to the Supreme Court, Nassau County, for furtherproceedings consistent herewith.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The defendant Champion Locksmith, Inc. (hereinafter Champion), entered into certainadvertising contracts with the plaintiff. The defendant Paul W. Mantini executed many of thecontracts on behalf of Champion. After Champion failed to remit payment on various invoicesissued pursuant to the [*2]contracts, the plaintiff commenced thisaction against Champion and Mantini, inter alia, to recover damages for breach of contract. Thedefendants moved for summary judgment dismissing the complaint insofar as asserted againstMantini, contending that he executed the contracts exclusively in a representative capacity andwas not individually liable thereon. The plaintiff cross-moved for summary judgment on thecomplaint against both defendants. The Supreme Court denied the defendants' motion andgranted the plaintiff's cross motion, subsequently rendering a judgment in favor of the plaintiffand against the defendants in the total sum of $394,841.53. We now modify the judgment andvacate that part of the underlying order which granted the plaintiff summary judgment on thosecauses of action asserted against the defendant Mantini, and we remit the matter to the SupremeCourt, Nassau County, for further proceedings on those causes of action.
While the denial of the defendants' motion for summary judgment dismissing the complaintinsofar as asserted against Mantini was proper, we disagree with the Supreme Court'sdetermination that Mantini failed to sustain his prima facie burden on the motion. "An agent whosigns an agreement on behalf of a disclosed principal will not be held liable for its performanceunless the agent clearly and explicitly intended to substitute his personal liability for that of hisprincipal" (Yellow Book of N.Y., Inc. vShelley, 74 AD3d 1333, 1334 [2010]; see Key Equip. Fin. v South Shore Imaging, Inc., 69 AD3d 805[2010]; Star Video Entertainment v J & I Video Distrib., 268 AD2d 423 [2000]). Here,Mantini's submissions on the motion sufficed to establish circumstances negating his personalliability on those contracts that he executed. However, the plaintiff raised a triable issue of fact inopposition to the motion, thus requiring a trial of the claims against Mantini (see YellowBook of NY v DePante, 309 AD2d 859, 860 [2003]). For the same reason, the SupremeCourt should have denied that branch of the plaintiff's cross motion which was for summaryjudgment against Mantini.
With regard to that branch of the cross motion which was for summary judgment againstChampion, the plaintiff's submission of the signed written contracts and certain regularly issuedand unpaid invoices demonstrated its prima facie entitlement to judgment as a matter of law onits causes of action asserted against Champion (see Castle Oil Corp. v Bokhari, 52 AD3d 762 [2008]; American Express Centurion Bank vWilliams, 24 AD3d 577, 577-578 [2005]; George S. May Intl. Co. v Thirsty Moose, Inc., 19 AD3d 721, 722[2005]; Bell Atl. Yellow Pages Co. v Padded Wagon, 292 AD2d 317, 318 [2002]),including its contractual claim for an attorney's fee (see 8109 Pizzeria of N.Y., Inc. v Polo Pizza One Corp., 67 AD3d627, 629 [2009]; Luis Lopez &Son's, Inc. v Dannie's Auto Care, 61 AD3d 643 [2009]). In opposition, Champion failedto raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch ofthe plaintiff's cross motion which was for summary judgment against Champion.
The defendants' remaining contentions are without merit. Mastro, J.P., Dillon, Balkin andMiller, JJ., concur.