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Altschul & Altschul v. Jacques Torkieh and Sti Enterprises Inc

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


December 22, 2010

ALTSCHUL & ALTSCHUL,
PLAINTIFF-RESPONDENT,
v.
JACQUES TORKIEH AND STI ENTERPRISES INC.,
DEFENDANTS-APPELLANTS.

Per curiam.

Altschul & Altschul v Torkieh

Appellate Term, First Department

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2010

PRESENT: Hunter, Jr., J.P., McKeon, Shulman, JJ

Defendants, as limited by their brief, appeal from (1) that portion of an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered May 18, 2006, which granted plaintiff's motion for summary judgment, and (2) an order (same court and Judge), dated November 27, 2006, which denied defendants' motion to reargue and renew the aforesaid order.

Appeal from order (Peter H. Moulton, J.), entered May 18, 2006, treated as a premature appeal from the ensuing judgment (same Judge), entered November 1, 2006 (see CPLR 5520[c]), as so treated, judgment, insofar as appealed from, modified to vacate the judgment as entered against defendant Jacques Torkieh and deny that branch of plaintiff's motion seeking summary judgment against Torkieh; as modified, judgment affirmed, without costs, and matter remanded to the Civil Court for further proceedings. Appeal from order (same Judge), dated November 27, 2006, to the extent appealable, affirmed, without costs.

Plaintiff, a law firm, commenced this action against defendants -- a corporation (STI Enterprises, Inc.) and one of its employees (Torkieh) -- to recover unpaid legal fees, asserting a cause of action for account stated. On its motion for summary judgment, plaintiff made a prima facie showing of entitlement to judgment as a matter of law against STI, since the evidence adduced in support of plaintiff's motion demonstrated that bills were submitted to STI and that it did not object to the bills (see Fred Ehrlich P.C. v Tullo, 274 AD2d 303 [2000]). In opposition, STI failed to raise a triable issue as to its liability.

However, summary judgment should not have been granted against Torkieh. Generally, an officer or agent of a corporation is not liable on the corporation's contracts, unless the officer or agent purports to bind him or herself individually (see PNC Capital Recovery v Mechanical Parking Sys., Inc., 283 AD2d 268 [2001], lv dismissed 96 NY2d 937 [2001], appeal dismissed 98 NY2d 763 [2002]; see also 150 Broadway NY Assoc., L.P. v Bodner, 14 AD3d 1 [2004]). Since plaintiff failed to establish with evidence in admissible form that Torkieh intended to be personally liable for STI's unpaid legal fees, plaintiff failed to demonstrate its entitlement to summary judgment against him.

With respect to defendants' subsequent motion pursuant to CPLR 2221, Civil Court providently exercised its discretion in denying renewal (see Chelsea Piers Mgt. v Forest Elec. Corp., 281 AD2d 252 [2001]; Forteau v Westchester County, 227 AD2d 245 [1996]), and, to the extent defendants seek review of the denial of that branch of their motion which was for reargument, no appeal lies from such denial (see D'Andrea v Hutchins, 69 AD3d 541 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 22, 2010

20101222

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