The motion by defendant Prestige Management, Inc., (hereinafter "Prestige") for an order pursuant to C.P.L.R. § 3211(a)(7) dismissing plaintiff's complaint, is granted solely with respect to plaintiff's second claim for breach of contract. Plaintiff's further motion for an order pursuant to C.P.L.R. § 3211(a)(2), dismissing plaintiff's complaint against it because the statute of limitations precludes plaintiff from commencing the proceeding, is denied.

Plaintiff's first cause of action is for negligent bailment in failing to secure plaintiff's belongings until she was restored to the residential apartment located at 215 West 140th Street, New York, New York (hereinafter "building") that she leased from Progressive Realty Associates, L.P. (hereinafter "Progressive"),which defendant Prestige acted as managing agent for. The second cause of action is for breach of contract arising from defendant's alleged promise that plaintiff would be restored to the apartment if she paid off her arrears.

First, Prestige moves to dismiss plaintiff's complaint for failure to state a cause of action on the ground that Prestige did not assume any liability on behalf of the owner, but merely acted in its capacity as an agent for a disclosed principal. A copy of the deed indicating that Progressive is the owner of the building is annexed to defendant's motion as Exhibit B. Prestige asserts that plaintiff was aware of Progressive's existence and identity. In support of this assertion, Prestige submits a copy of the lease renewal, dated January 1, 2010 (Exhibit A), indicating on the signature line that Arlyane McGlashan signed as "Prestige Mgmt, Inc. as agent for Progressive Realty Assoc., LP." Prestige asserts that summary judgment was entered in favor of Progressive in a nonpayment proceeding and the eviction was performed by the city marshal on July 20, 2011, which severed the landlord-tenant relationship. Prestige further asserts that [*2]neither Progressive nor Prestige entered into a written agreement with plaintiff to restore her to possession of the apartment if she paid the arrears in thirty days. Prestige argues that since the landlord-tenant relationship was severed, any alleged oral agreement to reinstate the landlord-tenant relationship would affect material terms of the agreement and would be null and void under the Statute of Frauds and General Business Obligations Law §5-703(2).

Second, Prestige moves to dismiss plaintiff's complaint on the ground that plaintiff is precluded from commencing this proceeding because she is barred by the one year statute of limitations for wrongful eviction claims. Prestige asserts that plaintiff was evicted on or about July 20, 2010, and did not commence this proceeding until February 23, 2012. Therefore, the statute of limitations ran on July 20, 2011, and the cause of action for wrongful eviction must be dismissed.

Third, Prestige claims that plaintiff was not wrongfully evicted because the eviction was conducted by a city marshal (Exhibit E), pursuant to a judgment and warrant of eviction issued by New York City Civil Court after plaintiff defaulted on the June 2, 2010 stipulation (Exhibit D).

Plaintiff opposes that motion and argues that in the amended summons and complaint, plaintiff already conceded that there is no cause of action for wrongful eviction; the causes of action are for negligence and breach of contract. Plaintiff asserts that the agency doctrine does not apply in every case and the amended complaint, broadly read, alleges that Prestige acted outside the scope of its agency when plaintiff's belongings were removed by Prestige and stolen by the superintendent. Finally, plaintiff's counsel asserts that if the principal indemnifies the agent, then plaintiff will discontinue against the agent.

Under C.P.L.R. § 3211(a)(7), a party may move for judgment dismissing one or more causes of action asserted against it on the ground that the pleading fails to state a cause of action. The pleading is afforded a liberal construction and all of the facts alleged in the complaint are accepted as true, giving the plaintiff the benefit of every favorable inference to determine whether the facts alleged fit within a cognizable legal theory. Leon v. Martinez, 84 NY2d 83, 87-88 (1994). Therefore, "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19 (2005).

Defendant Prestige has failed to demonstrate that plaintiff's pleading fails to state a cause of action. Prestige asserts that it was acting as an agent and did not assume any liability on behalf of its disclosed principal, Progressive. It is well established that when there is a disclosed principal-agency relationship, the agent is not personally bound unless there is clear and explicit evidence of the agent's intention to substitute his personal liability. Jones v. Archibald, 45 AD2d 532, 534 (4th Dept. 1974). However, this rule is not unlimited. The fact that an agent acts for a disclosed principal will not relieve him of liability for his own negligent acts, even if the principal may also be liable. Id. at 534. An intentional tort, committed by an employee, can result in the liability of his or her employer under the doctrine of respondent superior if the employee was acting within the scope of the employment at the time of the commission of the [*3]tort. Ramos v. Jake Realty Co., 21 AD3d 744, 745 (1st Dept. 2005). The determination of whether the doctrine applies depends on: "[t]he connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated." Riviello v. Waldron, 47 NY2d 297, 303 (1979).

Plaintiff asserts in her amended complaint that Prestige neglected its duty to secure plaintiff's belongings after the city marshal executed the warrant of eviction and changed the locks. Upon an execution of a warrant to evict, a marshal performs an eviction by removing the tenant and his personal property. Regan v. Tally Ho Trucking, 103 Misc 2d 269, 274 (NY Civ. Ct.1980). However, whether the marshal performs an eviction or puts the landlord in legal possession by only changing the locks is at the election of the landlord. Id.; New York City's Marshals Handbook, Chapter IV, Sect 6-3. Accepting all of the allegations in the complaint as true, plaintiff alleges that the city marshal put the landlord in legal possession without removing her property. A landlord may be responsible for the improper removal and loss of tenant's property. Marcado v. Weinheim, 108 Misc. 81, 84 (NY Civ. Ct. 1981). Plaintiff's complaint alleges further that her property was stolen by Prestige's superintendent or employees. Therefore, Prestige, even though acting for a disclosed principal, may be liable for its own negligent acts and those of its employees if it was acting within the scope of its employment.

However, plaintiff's second claim against Prestige for breach of contract is dismissed. Under the principal-agent doctrine, while the agent may be responsible for its own torts, there is no breach of contract liability of a disclosed agent acting solely on behalf of a disclosed principal. Mastropieri v. Comar Constr. Co.,159 AD2d 698 (2d Dept. 1990) (discussing how an agent for a disclosed principal may not be held individually liable to a third party for breach of contract but there would be a direct action against agent for fraud); CBS Outdoor Group Inc. v. Beifield, 20 Misc 3d 61, 63 (NY App. Term 2008) (finding that an employee acting as an agent for a disclosed principal when signing a contract may not be liable). Therefore, for an alleged breach of contract, plaintiff must bring this action against the principal.

Defendant Prestige also moves to dismiss this proceeding on the ground that under C.P.L.R. § 215(7) an action brought by a tenant under R.P.A.P.L. § 223(b), for wrongful eviction, must be commenced within one year. Plaintiff's counsel has conceded that plaintiff is not bringing a wrongful eviction claim; rather, the cause of action is for negligence and negligent bailment. Under R.P.A.P.L § 749 the issuing of a warrant for the removal of a tenant cancels the agreement under which the person removed held the premises annulling the relationship of landlord and tenant. R.P.A.P.L. § 729. The statute of limitations for interference with possession is three years and begins to accrue when the marshal removes the property from the premises. See Funding Assistance Corp. v. Mashreq Bank, PSC, 277 AD2d 127, 128 (1st Dept. 2000); C.P.L.R. § 214. A landlord may not be liable to a plaintiff for damage caused by the marshal in carrying out an eviction in accordance with a duly issued warrant. Id. at 128. Here, the city marshal never removed the property from the premises; the property was left in the possession of the defendant and landlord. The applicable statute of limitations began to run when the city marshal evicted plaintiff by putting the landlord in legal possession of the apartment. Accepting [*4]all of the plaintiff's allegations as true, Prestige may be liable for the alleged stolen property.

Accordingly, the motion dismissing plaintiff's complaint against defendant for failure to state of cause of action is granted solely with respect to plaintiff's second claim for breach of contract. The motion to dismiss plaintiff's complaint against defendant because the statute of limitations precludes plaintiff from commencing the proceeding, is denied.

This constitutes the decision and order of this court.

Dated: June 12, 2012______________________________

J.S.C.