The following e-filed documents, listed by NYSCEF document number (Motion 003) 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65 were read on this motion to VACATE ORDER.

In 2008, plaintiff Barry Goldsmith loaned $300,000 to defendant Locman USA Corp. through a promissory note. In 2014, Locman allegedly defaulted on the remaining balance of the note. In 2019, plaintiff commenced this action by summons and complaint, seeking the unpaid balance on the loan (plus interest) from Locman and from its president, defendant Ben Feigenbaum; and also seeking damages against Feigenbaum for alleged fraud related to the loan.

Ten days after filing the complaint, plaintiff filed in this action a motion for summary judgment in lieu of complaint against Locman and Feigenbaum for the unpaid balance on the loan plus interest. This court denied the motion on several grounds, including that the court could not, on the papers before it, ascertain properly the amount to which plaintiff would be entitled. (See NYSCEF No. 15.) Plaintiff then moved to renew and reargue in order to address the deficiencies that this court had identified. On renewal, this court granted summary judgment [*2]without opposition against both Locman and Feigenbaum. (See NYSCEF No. 30.) Judgment was then entered based on this court's order. (See NYSCEF No. 33.)

Feigenbaum now moves to vacate the order granting summary judgment as against him (and the judgment entered against him on that order); and he seeks, upon vacatur, dismissal of the claims against him made in the complaint, as well. Feigenbaum also seeks the disqualification of Goldsmith's counsel, Jonathan Fisher, Esq., under the advocate-witness rule. The motion to vacate and to dismiss is granted; the motion to disqualify is denied without prejudice as academic.

Feigenbaum first seeks vacatur under CPLR 5015 (a) (1) and CPLR 317 of this court's order granting summary judgment against him, and of the judgment entered on that order. His argument is simple: (i) he was never served with either the initial summons and complaint or the motion for summary judgment in lieu of complaint (see NYSCEF No. 35 at 5-7); and (ii) he has a potentially meritorious defense because he is not personally liable on the Locman note (see id. at 8-9). This court agrees.

Feigenbaum has submitted an affidavit flatly denying service of any papers in the action. (See NYSCEF No. 58 at ¶¶ 2, 24-25.) And plaintiff has not (either on this motion or otherwise) provided affidavits of service on Feigenbaum of either the summons and complaint or the motion for summary judgment.^[FN1]

Plaintiff's counsel represents in an affirmation that plaintiff made service "upon a person of suitable age and discretion at an address of Defendant" in a manner that was "completely valid pursuant to CPLR sec 308(2)"; and that "the affidavit of service was filed with the court." (NYSCEF No. 63 at ¶ 3.) Suffice to say that no such affidavit of service appears on the docket. At most, plaintiff has filed an affidavit of service on Feigenbaum of the motion to renew and reargue, after this court initially denied plaintiff's CPLR 3213 motion. (See NYSCEF No. 28.) That affidavit also reflects nail-and-mail service under CPLR 308 (4), not the leave-and-mail service under CPLR 308 (2) that plaintiff's counsel claims to have effected.

Moreover, even plaintiff validly served the motion to renew,^[FN2] that would not substitute for service either of the summons and complaint or of the initial CPLR 3213 summary-judgment motion. And the motion to renew was not validly served. Plaintiff originally made that motion returnable on December 10, 2019. (See NYSCEF No. 16.) On December 9, 2019, plaintiff's counsel filed a letter request seeking a two-week adjournment, representing that although "[t]he service of process has been completed," counsel was still waiting on "affidavits of service from Florida" that would "need to be filed prior to the motion date." (NYSCEF No. 26.) In reliance on this letter, the return date of the motion was adjourned to December 20, 2019.^[FN3] But the affidavit of service on Feigenbaum that ultimately was filed reflects that plaintiff's process server did not even affix the motion papers to the door of the service address until December 20 itself, and did not carry out the follow-up mailing until December 23, 2019. (See NYSCEF No. 28.) Plaintiff does not explain how in these circumstances service could possibly have been proper.

The absence of proper service—at any point—constitutes a reasonable excuse (or more) for Feigenbaum's failure to appear and oppose plaintiff's motion to renew his CPLR 3213 motion.

The absence of proper service constitutes a reasonable excuse for Feigenbaum's failure to appear and oppose the motion to renew. And Feigenbaum also has provided a potentially meritorious defense: he never assumed a personal obligation to repay the loan made by plaintiff to Locman.

The promissory note on which plaintiff relies, as amended, evidences only a loan from plaintiff to Locman. (See NYSCEF No. 4 [note]; NYSCEF No. 11 [amendment].) The note and amendment are executed on behalf of Locman "By: Ben Feigenbaum . . . Title: President," and "By: Ben Feigenbaum, President," respectively. (See id.) The note is not accompanied by a personal guarantee made by Feigenbaum.^[FN4]

An agent of a disclosed principal—such as a corporate officer signing on behalf of the corporation—will not be personally bound by the principal's obligations unless there is "clear and explicit evidence" that the agent intends to be bound instead of, or in addition to, the principal. (JDF Realty, Inc. v Sartiano, 93 AD3d 410, 410 [1st Dept 2012], citing Savoy Record Co. v Cardinal Export Corp., 15 NY2d 1, 4 [1964].) There is no "clear and explicit" evidence that Feigenbaum intended to make himself personally liable for Locman's debt to Goldsmith. Nor, in fact, has plaintiff ever asserted in this action that this evidence exists—he has merely asserted that "[p]ursuant to the Note and subsequent Agreement," Feigenbaum and Locman "are jointly and sever[ally] liable" for the "sums borrowed in the Note." (NYSCEF No. 64 at ¶ 8 [attorney affirmation opposing motion to vacate]; see also NYSCEF No. 8 at 3 [same, in Goldsmith affidavit supporting CPLR 3213 motion]; NYSCEF No. 17 at ¶ 4 [same, in Goldsmith affidavit supporting motion to renew and reargue].) That conclusory statement is not enough.

Feigenbaum also requests that upon vacatur of the judgment against him (and the order granting summary judgment), this court go on to dismiss the complaint. This court agrees that dismissal is warranted.

As an initial matter, dismissal of the complaint (and of the CPLR 3213 motion, if they are treated separately) is required as to Feigenbaum for lack of personal jurisdiction, for the reasons set forth above.

Even if plaintiff somehow could establish personal jurisdiction, though, the action (and CPLR 3213 motion) would still be subject to dismissal as to Feigenbaum. The first cause of action in the complaint (and the basis for the CPLR 3213 motion) is Locman's alleged default on the promissory note. But as discussed above, there is no basis to hold Feigenbaum personally liable on the note. The second cause of action arises from alleged fraud by Feigenbaum, consisting of transfers of merchandise secured by a UCC-1 financing statement issued to plaintiff.^[FN5] This cause of action is not pleaded with the particularity required for claims of fraud under CPLR 3016 (b)—it does not, for example, allege when any of these supposed transfers occurred.

Feigenbaum also moves to disqualify Jonathan Fisher from serving as plaintiff's counsel, relying on the advocate-witness rule. Feigenbaum alleges that Fisher and his colleague Richard Lefkowitz acted as attorneys for Locman on the loan from Goldsmith; and that they advised Feigenbaum as Locman's president about the terms of the deal—including whether he could be held personally liable on the note. (See NYSCEF No. 58 at ¶¶ 16-18.) Fisher, although acknowledging that he appeared on behalf of many clients of Lefkowitz and Edelstein on an "of counsel" basis—including Locman—states in an affirmation that he neither represented nor advised Locman or Feigenbaum with regard to the particular transactions at issue here.^[FN6] Ordinarily, these conflicting factual representations would raise a fact issue warranting an evidentiary hearing on the request to disqualify. (See Olmoz v Town of Fishkill, 258 AD2d 447, 448 [2d Dept 1999].) But given this court's dismissal of the claims against Feigenbaum, the issue of disqualification appears, at least for the moment, to be academic. This court therefore denies the motion to disqualify without prejudice.

Accordingly, it is hereby

ORDERED that the branch of Feigenbaum's motion seeking vacatur of that portion of this court's order entered January 17, 2020, that grants summary judgment against Feigenbaum is granted, and the order is vacated to that extent; and it is further

ORDERED that the judgment entered on March 13, 2020, upon this court's January 17, 2020, order is vacated to the extent that it grants judgment in favor of Goldsmith against Feigenbaum; and it is further

ORDERED that the branch of Feigenbaum's motion seeking dismissal of Goldsmith's claims against Feigenbaum (as asserted in the summons and complaint filed August 13, 2019, and the CPLR 3213 summary-judgment motion filed August 23, 2019) is granted, and the complaint is dismissed against Feigenbaum, with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs; and it is further

ORDERED that the branch of Feigenbaum's motion seeking disqualification of Jonathan Fisher, Esq., as counsel for Goldsmith is denied without prejudice as academic; and it is

ORDERED that Feigenbaum is to serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which is directed to amend its records accordingly.