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National Waste Services, LLC v. J. Christopher's Steak House & Lounge

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


April 13, 2011

NATIONAL WASTE SERVICES, LLC,
APPELLANT,
v.
J. CHRISTOPHER'S STEAK HOUSE & LOUNGE, LLC DOING BUSINESS AS CHI BAR & DINING LOUNGE,
RESPONDENT.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated September 11, 2009.

National Waste Servs., LLC v J. Christopher's Steak House & Lounge, LLC

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2011

PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ

The order denied plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, without costs.

Upon plaintiff's motion for summary judgment in this action to recover for breach of a contract for waste-removal services, plaintiff failed to establish its prima facie entitlement to judgment as a matter of law. In its verified answer, defendant asserted, as an affirmative defense, that it was not liable on the contract because the contract was signed neither by defendant nor by an agent of defendant. Plaintiff's moving papers failed to demonstrate that Joseph Stasi, the party who had purportedly signed the contract on defendant's behalf, was an authorized agent of defendant. Where the "circumstances raise the possibility of a principal-agent relationship but no written authority of the agent has been proven, questions of agency and of its nature and scope . . . [present] questions of fact" (Fogel v Hertz Intl., 141 AD2d 375, 376 [1988] [internal quotation marks omitted]; see Maurillo v Park Slope U-Haul, 194 AD2d 142, 147 [1993]).

Acts of an unauthorized person or agent may be retroactively authorized or ratified when a principal knows of the material facts of a transaction and adopts it by words or conduct. While plaintiff has alleged, and defendant did not specifically deny, that the contract was performed for two years prior to defendant's repudiation thereof, this conduct cannot be deemed a ratification of the written contract as a matter of law, as plaintiff has not shown that defendant was apprised of the material terms of the agreement (see Cashel v Cashel, 15 NY3d 794, 796 [2010]; Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126, 131 [1990]). Consequently, plaintiff's motion for summary judgment was properly denied (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

In light of this disposition, we do not reach the parties' remaining contentions.

Accordingly, the order is affirmed.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.

Decision Date: April 13, 2011

20110413

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