The following papers numbered 1 to 15 read on this motion by defendants for summary judgment dismissing plaintiff's complaint for lack of contractual relationship, for partial summary judgment determining certain limitations of liability clauses to be enforceable, and seeking the transfer of this action to Civil Court.

Papers

Numbered

Notice of Motion, Memorandum of Law,

Affirmation, Exhibits...........................1-10

Affirmation in Opposition, Affidavit,

Exhibits........................................11-14

Reply Affirmation...............................15

Upon the foregoing papers, it is ordered that the motion is determined as follows:

Plaintiff corporation commenced an action against defendants alleging, inter alia, damages as a result of defendants' breach of contract (Ex. E). Plaintiff contends that defendants contracted to provide certain surveying services to plaintiff with regard to a specific property and that defendants performed such services improperly, causing damages to plaintiff. [*2]

The first branch of defendants' motion seeks summary judgment on the ground that the complaint must be dismissed as plaintiff and defendants had no contractual relationship. Defendants contend that the subject contracts were not entered into by plaintiff, but that such contracts were between defendants and Wen Ye ("Ye").

The second branch of defendants' motion seeks partial summary judgment based upon an alleged limitation of liability clause contained in said contracts.

The third branch of defendants' motion seeks a transfer of this matter to the Civil Court, pursuant to CPLR §325(d).

Plaintiff opposes such motion, contending that Mr. Ye entered into the contracts as an agent of plaintiff, and that the alleged limitation of liability clause in the contracts is actually an exculpatory provision and, as such, is void and unenforceable.

Defendants present the subject contracts (Exs. A,B,C) all signed by Mr. Ye as "Client", and two of them (Exs. A, B), designating Mr. Ye as "Client's Authorized Agent". Defendants contend that none of the contracts, nor the complaint herein

(Ex. E), refer to a principal-agency relationship between plaintiff and Mr. Ye, and, as such, plaintiff does not have standing to commence this lawsuit. Plaintiff submits an affidavit from Mr. Ye in which Mr. Ye states that he signed the subject contracts "as an agent and on behalf of" plaintiff corporation (¶7), "the owner" of the property (¶4). Mr. Ye further alleges that defendant, Mr. Buckley, was "fully aware" that Mr. Ye was acting on behalf of plaintiff corporation as "each contract price was paid by Princetel company check" (¶9) and submits, as Ex. B to the Ye affidavit, a photocopy of a "Princetel LLC" check drawn to "Christopher Buckley", dated 7-16-07, and referring to "No.20504", which allegedly coincides with one of the subject contracts between Mr. Ye and defendants (Ex. B). Plaintiff further contends that plaintiff has rights under the subject contracts as both an undisclosed principal and as a third-party beneficiary to said contracts.

The proponent of a motion for summary judgment carries the initial burden of presenting sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact (see, Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Once the proponent has met its burden, the opponent must produce competent evidence in admissible form to establish the existence of a triable issue of fact (see, Zuckerman v. City of New York, 49 NY2d 556 [1980]). [*3]

The Court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" (Lopez v. Beltre, 59 AD3d 683, 685 [2 Dept. 2009]). "To grant summary judgment it must clearly appear that no material and triable issue of fact is presented... [t]his drastic remedy should not be granted where there is any doubt as to the existence of such issues ... or where the issue is arguable" [citations omitted] (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; see also, Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]; Andre v Pomeroy, 35 NY2d 361, [1974]; Kolivas v Kirchoff, 14 AD3d 493 [ 2 Dept.2005]). Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Scott v. Long Is. Power Auth., 294 AD2d 348, 348 [2 Dept. 2002]). Further, the facts alleged by the non-moving party, and the inferences that may be drawn therefrom, must be accepted as true (see, Doize v. Holiday Inn Ronkonkoma, 6 AD3d 573 [2 Dept. 2004]).

As summary judgment is to be considered the procedural equivalent of a trial, it must be denied if any doubt exists as to a triable issue, where there exists any conflict at all on the evidence, or where a material issue of fact is arguable (see, Dykeman v. Heht, 52 AD3d 767 [2 Dept. 2008]). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see, Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 [1988]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Med. Ctr., 64 NY2d 851, [1985]).

The first branch of defendants' motion seeking summary judgment on the ground that no contractual relationship exists between defendants and plaintiff is denied. As a general rule, "a contract not under seal, made in the name of an agent as ostensible principal, may be sued on by the real principal at the latter's election" (Kelly Asphalt Block Company v. The Barber Asphalt Paving Company, 211 NY 68, 70 [1914]). Further, "the unsuspected existence of an undisclosed principal can supply no ground for the avoidance of a contract unless fraud is proved" (Kelly, supra at 72). In the instant matter, fraud on the part of Mr. Ye has not been alleged by defendants.

Similarly, a contract entered into by two parties intended for the benefit of a third party may give rise to suit by such third party (see, Durnherr v. Rav, 135 NY 219 [1892]; Mendel v. Henry Phipps Plaza West, Inc., 6 NY3d 783 [2006]). As it is well-settled that the identity of a third-party beneficiary does [*4]not have to be named in the contract, or even be known at the time the contract is executed (see, MK West Street Company v. Meridien Hotels, Inc., 184 AD2d 312 [1 Dept. 1992]), the existence of an undisclosed principal or third-party beneficiary

is a matter of proof and may be proven by parol evidence (see, Dykers v. Townsend, 24 NY 57 [1861]). As such, defendants have failed to meet their initial burden as a triable issue of fact is presented by plaintiff which is sufficient to defeat summary judgment (see, Fourth Ocean Putnam Corp. v. Interstate Wrecking Co, 108 AD2d 3 [2 Dept. 1985]).

The second branch of defendants' motion seeking partial summary judgment, to the extent that the limitation of liability clause in the subject contracts is enforceable, is granted. The general rule is that a contractual provision limiting a party's liability is enforceable, unless damages result from such party's gross negligence, absent a statute or public policy to the contrary (see, Goldstein v. Carnell Associates, Inc., 74 AD3d 745 [2 Dept. 2010]; Weidenbenner v. Stern, 263 AD2d 453 [2 Dept. 1999}). In order to pierce an agreed-upon limitation of liability clause in a commercial contract, "gross negligence" requires conduct that evinces "intentional wrongdoing" (Sommer v. Federal Signal Corp., 79 NY2d 540, 554 [1992]; see, Peluso v. Tauscher Cronacher Professional Engineers, P.C., 270 AD2d 325 [2 Dept. 2000]). In the instant matter, plaintiff has not alleged that defendants' conduct constituted "gross negligence".

A clear contractual provision limiting a party's damages is enforceable absent a special relationship between the contracting parties, a statutory provision or an overriding public policy (see, Johnson v. MGM Emerald Enterprises, Inc., 69 AD3d 674 [2 Dept. 2010; Mancuso v. Rubin, 52 AD3d 580 [2 Dept. 2008]). None of these exceptions apply to this matter. The language contained in the subject contracts does not "exempt" defendants from liability resulting from the negligence of such defendants, but merely limits the contractors' liability and is, therefore, enforceable (see GOL §5-323; Weidenbenner, supra). Further, any claim of negligent conduct on the part of defendants in this matter arises from defendants' failure to fulfill the contractual obligations, and does not amount to a separate tort claim sufficient to defeat the limitation of liability clause herein (see, New York University v. Continental Insurance Company, 87 NY2d 308[1995].

The third branch of defendants' motion seeking to transfer this matter to the Civil Court, pursuant to CPLR §325(d), is hereby denied. [*5]

Accordingly, the first branch of defendants' motion seeking summary judgment dismissing plaintiff's complaint is hereby denied. The second branch of defendants' motion seeking that the limitation of liability clause included in the subject contracts be determined to be enforceable herein is hereby granted. The third branch of defendants' motion seeking the transfer of this matter to the Civil Court is hereby denied.

This Constitutes the Decision and Order of the Court.

Dated: April 29, 2011

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Denis J. Butler, J.S.C.