Imero Fiorentino Associates, Inc. v. Green ( 1982 )

OPINION OF THE COURT

Murphy, P. J.

Plaintiff’s executive vice-president, Linda K. Hobkirk, and defendant Edward V. Green signed a letter agreement dated February 15, 1980. Defendant Green signed on behalf of “Ed Green Associates”. Under that letter agreement, plaintiff furnished lighting equipment, services and personnel for a video tape production at Lake Placid. At the request of Hill-Eubanks, Inc. (also known as HillEubanks Group), the producer of the show, plaintiff subsequently supplied additional lighting services not covered by the letter agreement. To date, plaintiff has not been able to recover from either Hill-Eubanks, Inc., or the instant defendant.

In opposition to the plaintiff’s motion for summary judgment, defendant Edward V. Green has submitted an affidavit that is totally lacking in merit on the principal issue of liability.

First, defendant Green states that he did not know he was signing a letter agreement and that he did not intend to be bound thereby. An individual who signs or accepts a written contract, in the absence of fraud or other wrongful act on the part of the other contracting party, is conclusively presumed to know its contents and to assent to them. (Metzger v Aetna Ins. Co., 227 NY 411, 416.) Thus, Edward V. Green cannot validly contend that he was unaware that he was signing a contract or that he did not understand its terms.

Second, defendant Green emphasizes that plaintiff’s representative, Hobkirk, admits that she really does not know with whom she contracted. He further emphasizes that “Edward V. Green Associates” and “Ed Green Associates” are nonexistent entities. Defendant Green does not state whether he signed the letter agreement individually or as an officer of the corporate defendant. The plaintiff does not know with whom she contracted because she was purposely misled by the manner in which defendant Green signed the letter agreement; he deliberately signed on behalf of a nonexistent entity, “Ed Green Associates”. To complicate matters further, defendant Green refuses to admit on whose behalf he did sign. Through his evasive affidavit, Green hopes to perpetuate his fraudulent course of conduct and, in the end, to defeat all recovery by the plaintiff. Since the individual defendant admits that he signed on behalf of a nonexistent principal, he is individually liable under the letter agreement. (Puro Filter Corp. of Amer. v Trembley, 266 App Div 750.)

Third, defendant Green also avers that Hill-Eubanks, Inc., hired the plaintiff to perform the various lighting services and that it is solely responsible for any moneys owed. It is unnecessary to resolve in this action whether Hill-Eubanks, Inc., may be jointly and severally liable for the services rendered. The fact remains that defendant Green, as discussed above, is liable upon his signature. Moreover, Green does not deny that Hill-Eubanks, Inc., had both real and apparent authority to bind both defendants when it requested the additional services from the plaintiff.

Fourth, the record also contains a letter agreement, dated February 16, 1980, between the corporate defendant and Lake Placid 1980 Olympic Games, Inc. This agreement reveals that the corporate defendant was to be the prime developer of the production at Lake Placid. In the absence of any denial by defendant Green, it is fair to infer that the corporate defendant not only ratified the letter agreement between plaintiff and Green, but it also accepted the plaintiff’s equipment and services for use in the production. For these reasons, the corporate defendant is also responsible to the plaintiff.

In the context of his affidavit that is evasive and less than candid, defendant Green’s assertion as to the deficiencies in plaintiff’s performance would clearly appear to be a belated attempt to defeat summary judgment. Even if it were assumed that part of plaintiff’s performance was deficient or duplicative, it would still be entitled to recover a substantial portion of the $16,594.85 now sought. The plaintiff should be awarded partial summary judgment on the issue of liability under the first and second causes. The matter should then be remanded for an assessment to determine the reasonable value of the equipment and services actually provided by plaintiff and used by the defendants. At the assessment, defendants may be credited with a setoff for any deficiency in plaintiff’s performance.

Accordingly, the order of the Supreme Court, New York County (Pécora, J.), entered November 19, 1980, denying plaintiff’s motion for summary judgment, should be reversed, on the law, partial summary judgment should be granted on the first and second causes, and the matter should be remanded for an assessment of damages, with costs.