On February 19, 2004, the Plaintiff, as landlord, and the Defendant, Cali, Inc., as tenant, entered into a five (5) year lease agreement for the commercial premises known as 82 Main Street, Mineola, New York. The lease agreement, and the rider annexed thereto, were signed by Peter Tala, on behalf of the Plaintiff and by Sheenu George, s/h/a Sheenue R. Kuruvilla and another unnamed individual, on behalf of Cali, Inc.

On December 12, 2006 the Plaintiff commenced this action alleging that on or about November 15, 2006 the Defendants breached the lease agreement by vacating the premises prior to the expiration of the lease term. The Plaintiff further alleges that the Defendants have failed to pay rent, pursuant to the lease agreement, for the months of September, October and November, 2006 and have failed to pay for taxes, repairs and utilities as required by the lease agreement. The Defendant, Sheenu R. Kuruvilla appeared and served an Answer on or about January 16, 2007. The Defendant, Cali, Inc., has neither appeared nor answered.

The Defendant, Sheenu R. Kuruvilla now moves for summary judgment, dismissing the Complaint as against her or, in the alternative, dismissing the action based upon a lack of personal jurisdiction over her. The Plaintiff opposes the motion.

The Defendant, Sheenu R. Kuruvilla, identifies herself as Sheenu George ("Ms. George") and alleges that she is the Chief Executive Officer of Cali Salon & Spa, Inc., which is named as a Defendant herein as Cali, Inc. ("Cali") Ms. George further alleges that she executed the lease agreement at issue herein on behalf of Cali and that in so [*2]doing it was not her intention to be personally bound by the terms of the lease agreement.

Ms. George further alleges that on January 5, 2007, the date service was allegedly made upon her pursuant to CPLR § 308(4) she no longer resided at 92-31 215th Place, Queens Village, New York, the address at which service was allegedly made. According to Ms. George she had moved from that address in February 2006, almost one (1) year earlier, and was residing at 214-01a Hillside Avenue, Queens Village, New York on the date of the alleged service. Ms. George does not submit any documentation to support these claims.

In opposition, the Plaintiff alleges that when he entered into the lease with Cali, he "did so on the assurance that there would be a personal guarantee of the lease from the defendant, Sheenu R. Kuruvilla, and also from her former partner." (Tala Affidavit 4/3/07) The Plaintiff further alleges that this was "discussed with both individuals and understood by all parties to this lease agreement." (Tala Affidavit 4/3/07) The Plaintiff further claims that neither Ms. George nor her partner signed the lease agreement or the rider annexed thereto in their corporate capacity.

Neither the Plaintiff nor its attorney raise any factual issue regarding the alleged service upon Ms. George. The Plaintiff merely asks that the matter be set down for a traverse hearing on this issue.

Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) The court's function in determining such a motion is issue finding, not issue determination. Sillman v. Twentieth Century-Fox Film Corporation, supra . To prevail, the movant must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). It is only thereafter incumbent upon the party opposing summary judgment to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). The evidence presented must be viewed in a light most favorable to the party opposing the motion, here the Plaintiff. Corvino v. Mount Pleasant Central School District, 305 AD2d 364, 757 NYS2d 896 (2nd Dept. 2003); Tassone v. Johannemann, 232 AD2d 627, 648 NYS2d 708 (2nd Dept.,1996)

The law is well established that where an agent enters into a contract for a disclosed principal, the agent will not be bound to that contract " unless there is clear and explicit evidence of the agent's intention to substitute or superadd his personal liability for, or to, that of his principal.'" Savoy Record Co. v. Cardinal Export Corp., 15 NY2d 1, 254 NYS2d 521 (1964) quoting, Mencher v. Weiss, 306 N.Y.1,4, 114 NE2d 177, 179 (1953); see also: Harry Kolomick Contractors, Inc. v. Shelter Rock Estates, Inc., 172 [*3]AD2d 492, 567 NYS2d 845 (2nd Dept. 1991); Walz v. Todd & Honeywell, Inc., 195 AD2d 455, 599 NYS2d 638 (2nd Dept. 1993) There is a presumption that the agent intends to bind the principal, not himself. RKO-Stanley Warner Theatres, Inc. v. Plaza Pictures, 54 AD2d 623, 387 NYS2d 257 (1st Dept. 1976); Ronny-Gerard, Inc. v. Zimmerman, 150 AD2d 438, 541 NYS2d 46 (2nd Dept.1989)

That the Plaintiff avers he "would not have entered into the lease agreement solely with the defendant corporation," (Tala Affidavit 4/3/07) is insufficient to raise a triable issue of fact. The Plaintiff's intention is irrelevant; what is important is the intention of the agent. Savoy Record Co. v. Cardinal Export Corp., supra .; Steelmasters, Inc. v. Household Mfg. Co., 40 AD2d 963, 338 NYS2d 451 (1st Dept. 1972) Where, as here, the contract clearly states that it is between the Plaintiff and the corporate entity, the agent will not be personally liable thereunder. Metropolitan Switch Board Company, Inc. v. Amici Associates, Inc., 20 AD3d 455, 799 NYS2d 531 (2nd Dept. 2005)

Viewing the evidence presented in a light most favorable to the Plaintiff, there is simply no evidence that Ms. George intended to be personally bound to the lease agreement. Kopec v. Hempstead Gardens, Inc., 264 AD2d 714, 696 NYS2d 53 (2nd Dept. 1999); Harry Kolomick Contractors, Inc. v. Shelter Rock Estates, Inc., supra . "The fact that the agent signs the purported agreement in [her] own name is of no moment where the party alleging personal liability on the agent's part was aware that the agent was, in fact, acting as the agent for a disclosed principal (citation omitted)" Leonard Holzer Associates, Inc. v. Orta, 250 AD2d 737, 672 NYS2d 915 (2nd Dept. 1998); see also: Ell Dee Clothing Co. v. Marsh, 247 NY 392, 160 N.E. 651 (1928); Weinreb v. Stinchfield, 19 AD3d 482, 797 NYS2d 521 (2nd Dept. 2005); American Media Concepts, Inc. v. Atkins Pictures, Inc., 179 AD2d 446, 578 NYS2d 193 (1st Dept. 1992)

In fact, a careful reading of the Plaintiff's affidavit in opposition reveals that the Plaintiff does not actually suggest that Ms. George is liable as a party to the lease agreement itself. The Plaintiff actually alleges that Ms. George's liability lies in the Plaintiff's stated expectation that "there would be a personal guarantee."(Tala Affidavit 4/3/07) The Planitiff, however, has failed to put forth any evidence that such a personal guarantee exists. In fact, the uncontroverted documentation presented is to the contrary.

The lease agreement upon which this action is based actually contains a pre-printed rider to be signed by an individual or entity who guarantees "the full performance and observance of all the agreements to be performed and observed by Tenant in the attached lease ...." This provision, however, is unsigned. The true intent of these parties is to be determined from the four (4) corners of their agreement and the reasonable interpretation to be given to the language used. Geothermal Energy Corporation v. Caithness Corporation, 34 AD3d 420, 825 NYS2d 485 (2nd Dept. 2006); Del Vecchio v. Cohen, 288 AD2d 426, 733 NYS2d 479 (2nd Dept. 2001). Where, as here, there is a written agreement which purports to set forth all of the terms of the parties' agreement, extrinsic evidence will not be permitted to explain, vary or contradict same. [*4]Braten v. Banks Trust Company, 60 NY2d 155, 468 NYS2d 861 (1983); Gill v. Bowne Global Solutions, Inc., 8 AD3d 339, 777 NYS2d 712 (2nd Dept. 2004); North Fork Bank & Trust Co. v. Bernstein & Gershman, 201 AD2d 472, 607 NYS2d 135 (2nd Dept.1994) If it was truly the Plaintiff's intention to require Ms. George's personal guarantee, he should have made it his business to include such a provision in the agreement. The court will not write such a provision into the agreement, which the parties clearly did not agree to themselves. Slamow v. Delcol, 174 AD2d 725, 571 NYS2d 335 (2nd Dept. 1991) aff'd 79 NY2d 1016, 584 NYS2d 424 (1992); Tillim v. Fuks, 221 AD2d 642, 634 NYS2d 508 (2nd Dept. 1995)

Moreover, having clearly omitted Ms. George's personal guarantee from the agreement, the enforcement of any such guarantee would violate GOL § 5-701(2), which requires agreements to pay for the debt of another to be in writing. Paul, Weiss, Rifkind, Wharton & Garrison v. Westergaard, 75 NY2d 755, 551 NYS2d 896 (1989); New York Produce Trade Association, Inc. v. Mazzilli, 49 AD2d 729, 372 NYS2d 667 (1st Dept. 1975); Bart and Schwartz v. Teller, 228 AD2d 630, 646 N.Y.s.2d 24 (2nd Dept. 1996); Hamburger, Maxson & Yaffe, LLP v. Solow,277 AD2d 425, 716 NYS2d 892 (2nd Dept. 2000) The Plaintiff herein fails to submit any such writing.

Based upon the foregoing, that branch of the motion seeking summary judgment on behalf of the Defendant, Sheenu R. Kuruvilla, is granted; and the Complaint is dismissed as against the her. Under the circumstances, the court need not address the Defendant's jurisdictional argument.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

May 15, 2007

___________________________

ANDREW M. ENGEL

J.D.C.