In this breach of contract action, plaintiff moves for summary judgment, and defendant cross-moves for dismissal pursuant to CPLR §§ 3211(a)(1), (a)(7), or (a)(8), or 3212(b). For the following reasons, defendant's cross-motion is granted and the complaint is dismissed.

On May 3, 2005, plaintiff, a Delaware corporation then known as Viacom Outdoor Group, Inc., executed a "Contract for Transit and Street Furniture Advertising" (hereinafter "the contract") with Beifeld Jewelers, located in Haverford, Pennsylvania. The contract listed Beifeld Jewelers as the "Advertiser/Agency"^[FN1] and contained the store's address and phone number. On the signature line for "Advertiser/Agency," the contract was signed by Margie Beifeld, who is sued herein as an individual "doing business as Beifeld Jewelwers" (sic). Ms. Beifeld signed her name above the typed words "Authorized Signature Title." Among the contract's terms and conditions was that New York County would be the exclusive jurisdiction and venue for any legal action arising out of the contract, "including but not limited to claims for non-payment," and that New York State law would apply. (See ¶ 20 of Terms and Conditions.)

Plaintiff now moves for summary judgment on its claim that defendant breached the contract by failing to make the payments required thereunder. Plaintiff asserts that defendant is personally liable under the contract because she failed to disclose her status as an agent for the [*2]advertiser and also failed to disclose the actual identity of the principal.^[FN2] However, neither the contract itself, nor the other evidence in the record before this Court, supports that assertion. As set forth above, the contract clearly identifies Beifeld Jewelers as the Advertiser. Moreover, all of the invoices plaintiff sues upon here were addressed to Beifeld Jewelers at the address listed on the contract. In addition, the Court notes the following language which appeared above the signature lines of the contract: "[T]he person signing on behalf of Agency represent[s] that [he or she is] authorized to execute this contract on behalf of the Advertiser and that Advertiser approves same . . . ."

Thus, its arguments to the contrary notwithstanding, plaintiff's own moving papers demonstrate that defendant was clearly acting on behalf of the advertiser, Beifeld Jewelers, when she signed the contract. Furthermore, plaintiff makes no showing that Margie Beifeld ever conducted business under the assumed name of Beifeld Jewelwers (sic) such that she may be sued as a d/b/a ("doing business as").

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 [1986]. If the moving party sustains its burden, the opposing party must submit evidence of a triable issue of fact in order to defeat the motion. See Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]. The Court finds that plaintiff has failed to establish its entitlement to summary judgment in its moving papers.^[FN3] In any event, the Court finds that defendant's cross-motion conclusively establishes that defendant is not individually liable for the subject debt.

In her cross-motion, defendant establishes by documentary evidence that Beifeld Jewelers was the trade name of a corporation called Bei-Jewel Corp., in other words, that Bei-Jewel Corp. not defendant herself did business as Beifeld Jewelers. Defendant asserts in her supporting affidavit that she is the daughter of Diane Beifeld, the "owner" of Bei-Jewel Corp. According to defendant, a co-worker (Albert Yaghooty, whose name appeared on the contract next to the word "Attn:" beneath the advertiser's name, address, and phone number) had negotiated the advertising agreement with plaintiff. Defendant futher asserts that her mother, who was busy with a customer at the time plaintiff's representative was in the store to execute the agreement, asked defendant to sign on behalf of Beifeld Jewelers, and that this request was made in the presence of plaintiff's representative. Diane Beifeld also submits an affidavit in [*3]which she corroborates her daughter's account, and further claims that Beifeld Jewelers ceased operations on or about February 28, 2006.

Notably, defendant does not deny the underlying debt, but claims that Bei-Jewel fell on hard times and was unable to keep up with its financial obligations. In regard thereto, defendant submits correspondence between Beifeld Jewelers and plaintiff which shows that plaintiff well knew when it brought this suit that defendant was not the correct party. In a letter dated April 6, 2006, Diane Beifeld, as president of "Bei-Jewel Corp. T/A Beifeld Jewelers," notified Beifeld's creditors of its financial distress, and offered each a check in full settlement of any and all outstanding obligations. The letter was typed on Beifeld Jewelers' letterhead, and had the words "Bei Jewel Corp. T/A Beifeld Jewelers-Haverford" across the top as well as above the signature line. Plaintiff's copy of the April 6 letter, which contained an offer of $358, was stamped received by plaintiff's counsel's law firm on April 17, 2006. On April 19, 2006, an attorney at the firm responded by letter rejecting the offer and returning the check. The letter was addressed to Diane Beifeld. Defendant Margie Beifeld's name appeared nowhere on any of this correspondence.

The same firm which received and rejected the offer then filed the instant suit on April 25, 2006. Certainly, by that date plaintiff and its attorneys were on notice that defendant Margie Beifeld was not "d/b/a Beifeld Jewelers." Whether plaintiff should have sued Bei-Jewel Corp., Beifeld Jewelers d/b/a Bei-Jewel Corp., or Diane Beifeld is not at issue before this Court. What is before this Court is whether there is any basis for holding this defendant, Margie Beifeld, liable, and the Court finds that there is not.

Plaintiff fails in its reply and opposition to the cross-motion to rebut any of the facts conveyed in defendant's cross-moving papers. Rather, plaintiff's affiant, Director of Credit and Collections Neil Best, belatedly discloses that the person who actually negotiated and executed the contract no longer works for plaintiff. Thus, Mr. Best lacks any personal knowledge of the underlying facts. Plaintiff's counsel then recites unpersuasive legal arguments which essentially ignore the relevant facts. For example, plaintiff complains that it had no knowledge prior to the execution of the contract that the corporate name of Beifeld Jewelers was Bei-Jewel Corp. Tellingly, plaintiff's counsel does not deny knowing this fact prior to its drafting and filing the lawsuit.

In reply, defendant cites a case that could not be more instructive. In Viacom Outdoor, Inc. v Cerullo, the U.S. District Court for the Southern District rejected the efforts of this same plaintiff to hold an individual personally liable on the same format advertising contract at issue here. See Viacom Outdoor, Inc. v Cerullo, 2006 WL 2289851 [SDNY Aug. 10, 2006]. In light of the transparency of the contract including the clearly identified name of the advertiser and the language that the agreement was being executed on behalf of said advertiser the court found it "difficult to credit" the plaintiff's claim that it was unaware that the defendant company president was signing in his capacity as an agent. Id. at *2. Moreover, the court held that it was sufficient that the defendant provided the shorthand, unofficial name and correct address of his company to put the plaintiff on notice that he was acting as an agent therefor; it was not necessary that he [*4]disclose the official name of the corporation. Id. at *3.

Based upon the foregoing, the Court finds that defendant has made out a prima facie case for entitlement to summary judgment as a matter of law.^[FN4] In opposition, plaintiff has failed to raise a triable issue of fact. The law requires a party opposing summary judgment to "lay bare" its proof to demonstrate the existence of a genuine triable issue of fact. See AFA Protective Systems, Inc. v Kaufman Eighth Ave. Assocs., 251 AD2d 127, 672 NYS2d 738 [1st Dept 1998]; State v Metz, 241 AD2d 192, 198, 671 NYS2d 79, 82 [1st Dept 1998]. Plaintiff's opposition to the cross-motion only serves to lay bare the hollowness of its claim against defendant Margie Beifeld.

Therefore, defendant's cross-motion for summary judgment is granted, and the complaint is hereby dismissed.

This is the Decision and Order of the Court.



ARLENE P. BLUTH

Judge, Civil Court