                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 16, 2014                    517976
________________________________

RONALD WINER,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

JOSEPH F. VALENTINO JR. et al.,
                    Respondents.
________________________________


Calendar Date:   September 10, 2014

Before:    Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

                              __________


     Kevin P. Barry, Poughkeepsie, for appellant.

      Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC,
New Windsor (Nicholas A. Pascale of counsel), for respondents.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (Cahill, J.),
entered June 10, 2013 in Ulster County, which, among other
things, partially granted defendants' motion to dismiss the
complaint.

      Plaintiff commenced this action alleging breach of contract
and warranty claims against defendant Joseph F. Valentino Jr., as
the builder of plaintiff's new home. The complaint also alleged
that Valentino was doing business under the assumed name of J & J
Enterprises. After learning that J & J Enterprises was actually
the trade name of a corporation identified as Jean M. Valentino,
Inc., plaintiff amended the complaint to add the corporation as a
defendant. Defendants then moved to dismiss pursuant to CPLR
3211 (a) (1) and (7) claiming, among other things, that Valentino
could not be held personally liable because he was acting as the
                              -2-                517976

agent for a disclosed corporate principal. Supreme Court agreed
and partially granted the motion by dismissing the complaint
against Valentino.

      Plaintiff appeals, contending that the documentary evidence
submitted by defendants does not "utterly refute" his claim that
he had no indication that Valentino was acting as an agent for a
disclosed corporate principal. We agree. "It is well settled
that an individual who signs a contract as an agent for an entity
will be held personally liable on the contract if the agency
relationship is not disclosed" (DeAngelis v Timberpeg E., Inc.,
51 AD3d 1175, 1179 [2008] [citation omitted]; see McClure v
Central Trust Co. of N.Y., 165 NY 108, 128 [1900]; New England
Mar. Contrs. v Martin, 156 AD2d 804, 805 [1989]; see also
Restatement [Third] of Agency §§ 6.02, 6.03). Whether or not a
principal is disclosed depends upon whether, at the time of the
underlying transaction, the other party to the contract had
notice that the agent was acting for a principal and knew of the
principal's identity (see Stonhard v Blue Ridge Farms, LLC, 114
AD3d 757, 758 [2014]; Safety Envtl., Inc. v Barberry Rose Mgt.
Co., Inc., 94 AD3d 969, 969-970 [2012]).

      Here, the contract identified J & J Enterprises as the
builder, but there is no reference in the contract or in the
accompanying specifications sheet to the status of J & J
Enterprises as the trade name of a corporation or to Valentino's
status as an officer or representative of any such corporation.
While not dispositive, the contract, specifications sheet and an
acknowledgment of a subsequent financial transaction were all
signed by Valentino without reference to any agency or
representative capacity. Moreover, the use of the pronouns "he"
and "his" in reference to the builder in the body of the contract
supports plaintiff's argument that it was not unreasonable for
him to assume that J & J Enterprises was a trade name for
Valentino and not for a corporation. While defendants argue that
the single reference in the contract to the builder's agent
indicated that the builder and its agent were not one and the
same, this reference does not reveal an agency relationship
between Valentino and a corporation. It merely suggests that the
builder may have an agent or representative, and does nothing to
discount the inference that Valentino was doing business as J & J
                              -3-                517976

Enterprises.

      Contrary to defendants' argument that the use of the J & J
Enterprises trade name instead of the name of the corporation was
inconsequential since the trade name is registered with the
Secretary of State and is a matter of public record, plaintiff
did not have a duty to investigate in order to discover the
principal's identity (see Safety Envtl., Inc. v Barberry Rose
Mgt. Co., Inc., 94 AD3d at 970; Tarolli Lbr. Co. v Andreassi, 59
AD2d 1011, 1012 [1977]). Accordingly, Supreme Court erroneously
concluded that the contract, the specifications sheet and the
certificate of assumed name that were proffered by defendants
"utterly refute[d] plaintiff's factual allegations, conclusively
establishing a defense as a matter of law" (Goshen v Mutual Life
Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Mason v First
Cent. Natl. Life Ins. Co. of N.Y., 86 AD3d 854, 855 [2011];
Venture Silicones, Inc. v General Elec. Co., 14 AD3d 924, 925
[2005]).

      Even if we were to conclude that the insurance certificates
submitted by defendants in their reply were properly considered
by Supreme Court, they too were insufficient to warrant the
dismissal of plaintiff's claims against Valentino. The insurance
certificates indicate on their face that they were issued by
defendants' insurer to the local town building department, not to
plaintiff. Moreover, they are dated over a week after the
parties signed the contract. Since, "[t]o be effective,
disclosure must occur at the time the contract is made" (Ardwin v
Englert, 81 AD2d 960, 961 [1981], affd 56 NY2d 936 [1982]; see
Stonhard v Blue Ridge Farms, LLC, 114 AD3d at 758; New England
Mar. Contrs. v Martin, 156 AD2d at 805), defendants' submissions
did not "establish conclusively that plaintiff ha[d] no cause of
action" against Valentino (Lin v County of Sullivan, 100 AD3d
1076, 1077 [2012] [internal quotation marks, brackets and
citation omitted]; see Gray v Schenectady City School Dist., 86
AD3d 771, 772 [2011]; New York State Elec. & Gas Corp. v Aasen,
157 AD2d 965, 966 [1990]). Accordingly, Supreme Court erred in
dismissing plaintiff's claims against Valentino pursuant to CPLR
3211 (a) (1) and (7).

     Lahtinen, J.P., McCarthy, Lynch and Devine, JJ., concur.
                              -4-                  517976

      ORDERED that the order is modified, on the law, with costs
to plaintiff, by reversing so much thereof as partially granted
defendants' motion and dismissed the complaint against defendant
Joseph F. Valentino Jr.; motion denied to that extent; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
