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STROLL v. EPSTEIN

April 15, 1993

MICHAEL R. STROLL, Plaintiff,
v.
JEFFREY EPSTEIN, Defendant.



The opinion of the court was delivered by: KENNETH CONBOY

 KENNETH CONBOY, DISTRICT JUDGE:

 We have before us an action for breach of contract. Plaintiff Michael R. Stroll ("Stroll") seeks to recover from defendant Jeffrey Epstein ("Epstein") money allegedly owed pursuant to a contract in which Stroll relinquished his interest in a joint venture. Epstein asserts that he executed the contract in a representative capacity, as an agent for the venture and as an officer of the Intercontinental Asset Group ("I.A.G."), and that, therefore, he is not personally liable under the contract.

 Pending before the Court are two motions: (1) defendant Epstein's motion to dismiss the complaint for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment; *fn1" and (2) plaintiff Stroll's cross-motion for summary judgment. For the reasons that follow, Epstein's motion for summary judgment is granted, and Stroll's cross-motion is denied.

 Discussion2

 A. The November 1984 Contract

 "Under New York law, *fn4" . . . the Court must look first to the parties' written agreement to determine the parties' intent and [must] limit its inquiry to the words of the agreement itself if the agreement sets forth the parties' intent clearly and unambiguously." Sterling Drug Inc. v. Bayer AG, 792 F. Supp. 1357, 1365 (S.D.N.Y. 1992). See also Chimart Associates v. Paul, 66 N.Y.2d 570, 498 N.Y.S.2d 344, 346, 489 N.E.2d 231 (Ct. App. 1986) (Where a contract is unambiguous on its face, the Court may not consider evidence extrinsic to the contract to determine the parties' intent.). Whether a contract is ambiguous is a matter of law to be determined by the Court. Sterling, 792 F. Supp. at 1366. A contract is ambiguous if it is reasonably susceptible of more than one interpretation. Chimart, 498 N.Y.S.2d at 346. Unambiguous contractual language is not rendered ambiguous "simply because the parties urge different interpretations in litigation." Sterling, 792 F. Supp. at 1366. Moreover, whether a contract is ambiguous is to be determined by considering the contract as a whole. Wing v. Wing, 112 A.D.2d 932, 492 N.Y.S.2d 450, 452 (2d Dep't 1985).

 Stroll asserts that the above-quoted sentence demonstrates that Epstein acted in a representative capacity only when he agreed to accept Stroll's demand for rescission, and that Epstein personally agreed to buy out Stroll's interest in the venture. We find Stroll's interpretation of this sentence strained and unreasonable as there is nothing in the sentence to indicate that the phrase "in your capacity as . . . an officer . . . and as agent. . . ." does not apply to the entire sentence.

 In an attempt to establish Epstein's personal liability, Stroll points to selected phrases of the contract which use personal pronouns to refer to Epstein (e.g., "I hereby accept your demand for rescission and tender upon the terms and conditions contained herein.") . However, the very first time the contract uses a personal pronoun to refer to Epstein, the contract states, "in your capacity as both an officer of Intercontinental Asset Group and as agent for the joint venture you. . . agreed to accept my rescission of my acquisition . . . and my tender to you of all my interests in the venture and you are to return all amounts contributed by me to the venture. . . ." (emphasis added). This sentence indicates that when the contract, after this sentence, uses only personal pronouns to refer to Epstein, it is referring to Epstein in a representative capacity.

 Finally, Stroll argues that Epstein's signature on the contract reveals the parties' intention to hold Epstein personally liable because Epstein did not sign the contract as an agent or as a corporate officer. Epstein signed the contract as follows: /s/ Jeffrey Epstein I.A.G., Under New York law, a signature in a representative capacity would have been "Jeffrey Epstein for I.A.G." or "I.A.G., by Jeffrey Epstein". 2 N.Y.Jur. 2d, Agency, § 181. However, under New York common law principles of agency, which govern this contract, *fn5" a contract which demonstrates on its face that the defendant was acting solely in a representative capacity will not be rendered ambiguous simply because the defendant failed to sign the contract in a representative capacity. See Stylianides v. De Lorean Motor Co., 115 Misc. 2d 861, 454 N.Y.S.2d 799, 800 (N.Y. Sup. Ct. 1982); 2 N.Y.Jur. 2d §§ 180, 182. See generally Ell Dee Clothing Co., Inc. v. Marsh, 247 N.Y. 392, 395, 160 N.E. 651 (Ct. App. 1928) ("[W]here one party to a written contract is known to the other party to be in fact acting as agent for some known principal, he does not become personally liable whether he signs individually or as [an] agent."). Accordingly, because the body of the contract clearly indicates that Stroll knew, or should have known, *fn6" Epstein was acting in a representative capacity, the failure of Epstein's signature to meet the technical requirements of a representative signature is insufficient to render the contract ambiguous as to the parties' intent.

 Based on the above analysis, the Court concludes that the November 1984 contract, when read as a whole, is unambiguous on its face and indicates the parties' intention that Epstein was acting in a representative capacity when he agreed to return Stroll's capital contribution.

 Stroll, however, seeks to introduce extrinsic evidence to generate ambiguity in the contract. Specifically, Stroll seeks to introduce a prior written contract executed by Stroll, I.A.G., and Epstein on June 18, 1982. Stroll argues that an interpretation of the November 1984 contract as imposing personal liability on Epstein would be ...


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