Tuminello, LLP, Bay Shore, NY (Michelle Aulivola and Nicole
Bohler of counsel), for appellants.
J. Stock, Mineola, NY (Victor A. Carr of counsel), for
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, BETSY BARROS,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action, inter alia, to recover damages for breach of contract
(Action No. 1), and a related action to recover on a
promissory note and personal guaranty, commenced by motion
for summary judgment in lieu of complaint pursuant to CPLR
3213 (Action No. 2), which were joined for trial,
Microcosmic, Inc., a defendant in Action No. 1 and the
plaintiff in Action No. 2, and Thomas Bruckner, a defendant
in Action No. 1, appeal from a judgment of the Supreme Court,
Suffolk County (Gazzillo, J.), dated March 26, 2015, which,
upon a decision of the same court dated January 15, 2015,
made after a nonjury trial, is in favor of STL Restaurant
Corp. and Tom DeSantis, the plaintiffs in Action No. 1 and
the defendants in Action No. 2, and against Microcosmic,
Inc., and Thomas Bruckner in the total sum of $182, 307.67 in
Action No. 1 and dismissing Action No. 2.
that the judgment is modified, on the law and the facts, by
deleting the provision thereof awarding damages in favor of
STL Restaurant Corp. and Tom DeSantis and against Thomas
Bruckner in Action No. 1, and substituting therefor a
provision dismissing the complaint insofar as asserted
against Thomas Bruckner in Action No. 1; as so modified, the
judgment is affirmed, without costs or disbursements.
DeSantis entered into a written agreement with Microcosmic,
Inc. (hereinafter Microcosmic), for the sale of a
"Restaurant business." Microcosmic
"represent[ed] and warrant[ed]" that the business
was "being operated in accordance with all laws,
ordinances and rules." DeSantis assigned his rights and
obligations under the agreement to STL Restaurant Corp.
(hereinafter STL) and personally guaranteed a promissory note
in which STL agreed to pay a portion of the purchase price in
installments. Less than one month after closing, the Town of
Islip fire marshal responded to a kitchen fire at the
business and cited DeSantis and STL for 11 violations.
DeSantis thereafter discovered that the certificate of
occupancy authorized the operation of a bar rather than a
restaurant and that correcting the discrepancy would be
and STL commenced Action No. 1 against Microcosmic and Thomas
Bruckner, the president of Microcosmic, seeking damages for,
inter alia, breach of contract. DeSantis and STL thereafter
stopped making payments under the note and surrendered the
business to Microcosmic and Bruckner. Microcosmic then
commenced Action No. 2 against DeSantis and STL to recover on
the note and guaranty. The Supreme Court joined the actions
for discovery and trial, and, after dismissing all of
DeSantis and STL's causes of action in Action No. 1
except for breach of contract, conducted a nonjury trial. The
court found in favor of DeSantis and STL and entered a
judgment awarding them damages against both Microcosmic and
Bruckner in Action No. 1 and dismissing Action No. 2.
Microcosmic and Bruckner appeal. We modify.
appeal from a judgment rendered after a nonjury trial, this
Court's authority is as broad as that of the trial court,
and this Court may render the judgment it finds warranted by
the facts, taking into consideration in a close case the fact
that the trial court had the advantage of seeing the
witnesses (see Northern Westchester Professional Park
Assoc. v Town of Bedford, 60 N.Y.2d 492, 499; Law
Offs. of Ronald V. DeCaprio v Boncoeur, 134 A.D.3d 682;
Kamalian v Community OB/GYN Assoc., PLLC, 132 A.D.3d
814). Upon our review of the record here, we find that so
much of the judgment as awarded damages against Microcosmic
for breach of contract and dismissed Action No. 2 was
warranted by the facts.
the Supreme Court improperly awarded damages to DeSantis and
STL against Bruckner personally. An agreement between parties
or their attorneys relating to any matter in open court is
binding upon the parties, even absent a writing (see
Caroli v Allstate Ins. Co., 100 A.D.3d 941, 943;
Sannella v Plainview Fire Dept., 136 A.D.2d 617;
Sontag v Sontag, 114 A.D.2d 892, 893). Stipulations
"spread upon the record in open court" are favored
by the courts and will not be lightly cast aside (Wilson
v Wilson, 35 A.D.3d 595, 596 [internal quotation marks
omitted]; see Hallock v State of New York, 64 N.Y.2d
224, 230; Matter of Strang v Rathbone, 108 A.D.3d
565, 565-566; Matter of Siegel, 29 A.D.3d 914).
Here, during a colloquy at the outset of the trial in which
the court sought clarification about the parties'
stipulated facts, counsel for DeSantis and STL stated,
"[w]e only have a first cause of action left in this
case. We're alleging breach of contract." Counsel
then declared that "Microcosmic is the only
defendant." DeSantis and STL identify nothing in the
record indicating that their counsel's statements were a
result of fraud, overreaching, mistake, or duress (see
Matter of Strang v Rathbone, 108 A.D.3d at 565-566).
Contrary to DeSantis and STL's arguments, these clear and
unambiguous statements demonstrate that the parties agreed
that the only issue to be decided at trial was whether
Microcosmic had breached the agreement.
event, even if counsel's statements were ambiguous as to
whether Bruckner was still a defendant, as DeSantis and STL
argue, the facts adduced at trial did not support awarding
damages against Bruckner. "It is an elementary principle
of contract law that generally only parties in privity of
contract may enforce terms of the contract'" (LI
Equity Network, LLC v Village in the Woods Owners Corp.,
79 A.D.3d 26, 35, quoting Freeford Ltd. v Pendleton,
53 A.D.3d 32, 38; see Environmental Appraisers &
Bldrs., LLC v Imhof, 143 A.D.3d 756, 757; Hamlet at
Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64
A.D.3d 85, 104-105; Simplex Grinnell v Ultimate Realty,
LLC, 38 A.D.3d 600; M. Paladino, Inc. v Lucchese
& Son Contr. Corp., 247 A.D.2d 515). The unrebutted
evidence here, particularly the agreement and related
documents listing only Microcosmic as the seller and signed
by Bruckner only in his capacity as president of Microcosmic,
established that Bruckner was not a party to the contract.
Furthermore, "a corporation exists independently of its
owners, who are not personally liable for its obligations,
and... individuals may incorporate for the express purpose of
limiting their liability" (East Hampton Union Free
School Dist. v Sandpebble Bldrs., Inc., 66 A.D.3d 122,
126, affd 16 N.Y.3d 775; see Superior
Transcribing Serv., LLC v Paul, 72 A.D.3d 675, 676). The
evidence presented at trial did not warrant piercing the
corporate veil (see Porquoi M.P.S., Inc. v Worldstar
Intl., Ltd., 91 A.D.3d 839, 839-840). Consequently, the
Supreme Court should not have awarded damages against
Bruckner (see Jesmer v Retail Magic, Inc., 55 A.D.3d
171, 182-183; Buehner v International Bus. Machs.
Corp., 270 A.D.2d 299, 300).
and Bruckner's remaining argument is academic in ...