Appeal from a judgment of the District Court of Suffolk County, First District (Philip Goglas, J.), entered October 18, 2011. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $10,235.87 as against defendant Roger Siguencia.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and so much of the complaint as is against defendant Roger Siguencia is dismissed.

In this action, plaintiff seeks to recover the principal sum of $10,235.87, based on defendants' failure to pay sums allegedly due to it under a series of four contracts for advertising for the corporate defendant, and upon an account stated. A separate cause of action was stated against the individual defendant, based on his alleged guaranty of the contracts. Following a nonjury trial, judgment was awarded against both defendants in the principal sum of $10,235.87. The individual defendant, Roger Siguencia, appeals.

Plaintiff's sole witness at the trial was one Gianna Griffin, who identified herself as a "corporate representative" of plaintiff. Griffin had no personal knowledge of the underlying facts of the case, and based her testimony entirely on her review of plaintiff's books and records. Plaintiff introduced into evidence four separate contracts dated June 28, 2005, November 22, 2005, April 12, 2006 and September 21, 2006, respectively. The earlier two contracts were between plaintiff and nonparty Ingapirca Construction, Inc., while the later contracts were between plaintiff and defendant RS Builders, Inc. Although plaintiff failed to produce a witness to the making of the contracts, defendant Siguencia in effect admitted to having signed all four contracts, as president of Ingapirca Construction, Inc. and of RS Builders, Inc., respectively. On the first two contracts, he wrote his title, "president"; no title was set forth on the two later contracts, which, however, designated them as contracts with an "existing advertiser."

Each contract stated, above a single signature line, that it was an advertising contract between plaintiff and the corporate "customer." Defendant Siguencia was named as the "contact." Directly below the customer's signature line, there was set forth on each contract the printed statement, "Authorized Signature Individually and for the Company (Read clause 15F on [*2]reverse side)." The reverse side of each contract set forth, in small, light gray print, a full page of "terms and conditions." Paragraph 15F on the three earlier contracts stated, "The signer of this agreement does, by his execution personally and individually undertake and assume the full performance hereof including payments of amounts due hereunder." Paragraph 15F on the final contract, however, stated, "This agreement supercedes any other verbal or written agreement between Customer and Publisher. This agreement may not be changed except by a writing signed by an authorized signatory of Customer and Publisher"; on that contract, paragraph 15G (which was not referenced on the front of the contract) purported to bind the signer individually to the obligations of the agreement.

" A corporate officer who executes a contract acting as an agent for a disclosed principal is not liable for a breach of the contract unless it clearly appears that he or she intended to bind himself or herself personally' " (Ho Sports, Inc. v Meridian Sports, Inc., 92 AD3d 915, 916-917 [2012], quoting Stamina Prods., Inc. v Zintec USA, Inc., 90 AD3d 1021, 1022 [2011]; see also Bond Safeguard Ins. Co. v Forkosh, 107 AD3d 750, 751 [2013]). In order to hold an agent liable for the debts of his or her principal based on the agent's guaranty of corporate debts, there must be "clear and explicit evidence of the agent's intention to substitute or superadd his personal liability for, or to, that of his principal' " (Star Video Entertainment v J & I Video Distrib., 268 AD2d 423, 423-424 [2000], quoting Savoy Record Co. v Cardinal Export Corp., 15 NY2d 1, 4-6 [1964]; see also Salzman Sign Co. v Beck, 10 NY2d 63, 67 [1961]; Yellow Book of NY v DePante, 309 AD2d 859 [2003]). In cases involving contracts and circumstances substantially similar to the case at bar, summary judgment has been denied to plaintiff (Yellow Book Sales & Distrib. Co, Inc. v On Call Plumbing & Heating, Inc., 99 AD3d 896 [2012]; see also Yellow Book Sales & Distrib. Co., Inc. v Mantini, 85 AD3d 1019 [2011]; Yellow Book of NY LP v Zimilover, 5 Misc 3d 139[A], 2004 NY Slip Op 51633[U] [App Term, 9th & 10th 2004]; cf. Yellow Book Sales & Distrib. Co., Inc. v Shelley, 74 AD3d 1333 [2010]).

At the trial of this action, plaintiff in effect relied on the contracts to establish Siguencia's liability, since it failed to produce any other witness with knowledge of the facts. By his unrefuted testimony, Siguencia established that he only intended to bind his principals when he signed the contracts, and that he had not intended to substitute or superadd his own personal liability. In these circumstances, we conclude that plaintiff failed to establish Siguencia's personal liability on the contracts, and that the District Court erred in awarding judgment against Siguencia.

We reach no other issue.

Accordingly, the judgment, insofar as appealed from, is reversed, and so much of the complaint as is against defendant Roger Siguencia is dismissed.

Nicolai, P.J., LaSalle and Marano, JJ., concur.
Decision Date: December 12, 2013