Plaintiff commenced this action by summons and complaint seeking eighteen thousand dollars ($18,000.00) for refrigeration units made for Defendant. The action was transferred to this Court, pursuant to Civ. Pract. Law & Rules §325(d), for trial. The stipulated facts were that Defendant ordered the custom designed refrigeration units, which Plaintiff manufactured and delivered the units, and that [*2]Defendant did not pay for the units. The sole issue for trial was whether an alleged personal guarantee existed imposing liability upon Mario Sclafani (misspelled Scalafani in the caption) individually?A bench trial was conducted at which each party called one witness to testify. The Court reserved decision.

The Regional Sales Manager described Plaintiff's business in household and commercial refrigeration. When extending credit, the Plaintiff required an application with a personal guarantee that was then submitted for approval. Sclafani requested, and completed, such an application. The application was transmitted by telefax between the parties. The following provision appeared on the one page application, above the applicant's signature:

"I certify the above information to be true and correct. The undersigned further agrees to personally guarantee any sum or sums of money which purchaser now owes or shall owe at any time. I further accept the obligation to receive and pay for goods ordered and received by purchased [sic] above. If it becomes necessary for Felix Storch, Inc. to file suit to collect any monies due I agree to pay reasonable attorney's fees and costs."

An unintelligible signature, but which could be recognized as the first name beginning with "M," and the last name with "S," immediately followed. The application contained the Defendant's personal home address, the business banking information, and two business credit references. Plaintiff did not provide the Court with any evidence of attorneys' fees it may have incurred.

Sclafani testified that he was starting a new business which involved placing small refrigeration units containing point-of-purchase imported Italian desserts at local restaurants. It was projected to be a $25-million dollar business. The refrigeration units were custom designed with special gauges, lights, and a modified glass door to view the desserts. Sclafani denied any acknowledgment of a personal guarantee. Although he denied ever seeing the application, he did acknowledge that he referred all of his credit matters to the "girls in the office."Sclafani did admit that he knew the units were purchased on credit. He submitted copies of his driver's license, library card, and employee identification card to convince the court that the signature on the application was not his. Defendant's business failed, but the refrigeration units remained at the various store locations.

In a matter such as this, it is the province and indeed the obligation of the trial court to assess and determine matters of credibility. Morgan v McCaffrey, 14 AD3d 670 (2d Dep't 2005); Matter of Liccione v Michael A., 65 NY2d 826 (1985). When an agent acts on behalf of a disclosed principal, the agent will not be personally liable for a breach of contract unless there is clear and explicit evidence of the agent's intention to be personally liable. Weinreb v Stinchfield, 19 AD3d 482 (2d Dep't 2005). An agent is not personally bound, in the absence of clear and explicit evidence of an intent to be bound personally, even though he signed a contract without any language limiting his signature. Id. The Court should refrain from foisting an obligation on an agent, absent requisite clear and unequivocal evidence, to be gathered from the writing itself, that the agent intended to assume such a liability. Savoy Record Company Inc. v Cardinal Export Corp, 15 NY2d 1 (1964). A plaintiff establishes a claim on a guarantee by demonstrating (1) the existence of the guarantee; (2) a default on the underlying obligation secured by [*3]the guarantee; and (3) the defendant's failure to honor the guarantee. Hess Corp v Mangnone, 27 Misc 3d 1220 (Sup.Ct. NY Cnty , 2010), citing, Hotel 71 Mezz Lender LLC v. Mitchell, 63 AD3d 447, 448 (1st Dept 2009).

Based upon the court's observations of the Regional Sales Manager's demeanor, as well as the manner and nature of his testimony, it finds him to be credible. Having proven the existence of the guarantee, the default on the obligation, and defendant's failure to honor the guarantee, the question turns to the merits of the defense. While the Court finds that Sclafani believes he did not sign the guarantee, in light of his testimony, the Court does not find the defense credible.

Sclafani's defense was that the signature was not his. He stated that he did not handle any credit matters. Instead, he referred all credit matters to "the girls in the office." Yet, he knew he received the Plaintiff's units on credit. Defendant cannot escape his obligations by such a self-serving scheme whereby he denies his obligations while admitting he left it to "his girls" to do what was necessary. And, in this case, there is no question his staff signed the credit application, including the guarantee, on his behalf and returned it to the Plaintiff. Business owners who relinquish such unfettered authority to manage and complete their credit applications must assume the liability for what is completed on their behalf. Plaintiff had every expectation to rely upon the application received by telefax from Defendant's office. Although the signatures are not an exact match (the Court does not profess to be a handwriting expert), it is clear that the affixed signature so closely resembled that of the Defendant that it was, at a minimum, signed on his behalf by, according to his testimony, the "girls in the office." Defendant's self-serving denial was insufficient to persuade this Court otherwise.

By reason of the above it is hereby

ADJUDGED that Plaintiff Felix Storch Inc. D/B/A Summit Appliance is awarded judgment against Mario Sclafani in the amount of eighteen thousand dollars ($18,000.00) together with interest from August 31, 2007.

Submit judgment.

This constitutes the decision and order of the Court.

ENTER

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Judge