Copr. (c) 2011, Secretary of State, State of New York
N.Y.Co.Ct. 2011.
Felix Storch Inc v Martinucci Desserts USA Inc
This opinion is uncorrected and will not be published in the printed Official Reports.
Lake Success NY 11042
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
trial was whether an alleged personal guarantee existed imposing liability upon Mario Sclafani (misspelled Scalafani
in the caption) individually?A bench trial was conducted at which each party called one witness to testify. The Court
reserved decision.
TRIAL TESTIMONY
sum or sums of money which purchaser now owes or shall owe at any time. I further accept the obligation to receive
and pay for goods ordered and received by purchased [sic] above. If it becomes necessary for Felix Storch, Inc. to
file suit to collect any monies due I agree to pay reasonable attorney’s fees and costs.”
An unintelligible signature, but which could be recognized as the first name beginning with “M,” and the last name
The refrigeration units were custom designed with special gauges, lights, and a modified glass door to view the des-
serts. Sclafani denied any acknowledgment of a personal guarantee. Although he denied ever seeing the application,
he did acknowledge that he referred all of his credit matters to the “girls in the office.”Sclafani did admit that he
knew the units were purchased on credit. He submitted copies of his driver’s license, library card, and employee
identification card to convince the court that the signature on the application was not his. Defendant’s business
contract unless there is clear and explicit evidence of the agent’s intention to be personally liable. Weinreb v Stinch–
field, 19 AD3d 482 (2d Dep’t 2005). An agent is not personally bound, in the absence of clear and explicit evidence
of an intent to be bound personally, even though he signed a contract without any language limiting his signature. Id.
The Court should refrain from foisting an obligation on an agent, absent requisite clear and unequivocal evidence, to
be gathered from the writing itself, that the agent intended to assume such a liability. Savoy Record Company Inc. v
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
Based upon the court’s observations of the Regional Sales Manager’s demeanor, as well as the manner and nature of
his testimony, it finds him to be credible. Having proven the existence of the guarantee, the default on the obligation,
and defendant’s failure to honor the guarantee, the question turns to the merits of the defense. While the Court finds
that Sclafani believes he did not sign the guarantee, in light of his testimony, the Court does not find the defense
application, including the guarantee, on his behalf and returned it to the Plaintiff. Business owners who relinquish
such unfettered authority to manage and complete their credit applications must assume the liability for what is
completed on their behalf. Plaintiff had every expectation to rely upon the application received by telefax from De-
fendant’s office. Although the signatures are not an exact match (the Court does not profess to be a handwriting ex-
pert), it is clear that the affixed signature so closely resembled that of the Defendant that it was, at a minimum,
in the amount of eighteen thousand dollars ($18,000.00) together with interest from August 31, 2007.
Submit judgment.
This constitutes the decision and order of the Court.
Copr. (c) 2011, Secretary of State, State of New York
N.Y.Co.Ct. 2011.
Felix Storch Inc v Martinucci Desserts USA Inc
Slip Copy
END OF DOCUMENT
trial was whether an alleged personal guarantee existed imposing liability upon Mario Sclafani (misspelled Scalafani
in the caption) individually?A bench trial was conducted at which each party called one witness to testify. The Court
reserved decision.
TRIAL TESTIMONY
sum or sums of money which purchaser now owes or shall owe at any time. I further accept the obligation to receive
and pay for goods ordered and received by purchased [sic] above. If it becomes necessary for Felix Storch, Inc. to
file suit to collect any monies due I agree to pay reasonable attorney’s fees and costs.”
An unintelligible signature, but which could be recognized as the first name beginning with “M,” and the last name
The refrigeration units were custom designed with special gauges, lights, and a modified glass door to view the des-
serts. Sclafani denied any acknowledgment of a personal guarantee. Although he denied ever seeing the application,
he did acknowledge that he referred all of his credit matters to the “girls in the office.”Sclafani did admit that he
knew the units were purchased on credit. He submitted copies of his driver’s license, library card, and employee
identification card to convince the court that the signature on the application was not his. Defendant’s business
contract unless there is clear and explicit evidence of the agent’s intention to be personally liable. Weinreb v Stinch–
field, 19 AD3d 482 (2d Dep’t 2005). An agent is not personally bound, in the absence of clear and explicit evidence
of an intent to be bound personally, even though he signed a contract without any language limiting his signature. Id.
The Court should refrain from foisting an obligation on an agent, absent requisite clear and unequivocal evidence, to
be gathered from the writing itself, that the agent intended to assume such a liability. Savoy Record Company Inc. v
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
Based upon the court’s observations of the Regional Sales Manager’s demeanor, as well as the manner and nature of
his testimony, it finds him to be credible. Having proven the existence of the guarantee, the default on the obligation,
and defendant’s failure to honor the guarantee, the question turns to the merits of the defense. While the Court finds
that Sclafani believes he did not sign the guarantee, in light of his testimony, the Court does not find the defense
application, including the guarantee, on his behalf and returned it to the Plaintiff. Business owners who relinquish
such unfettered authority to manage and complete their credit applications must assume the liability for what is
completed on their behalf. Plaintiff had every expectation to rely upon the application received by telefax from De-
fendant’s office. Although the signatures are not an exact match (the Court does not profess to be a handwriting ex-
pert), it is clear that the affixed signature so closely resembled that of the Defendant that it was, at a minimum,
in the amount of eighteen thousand dollars ($18,000.00) together with interest from August 31, 2007.
Submit judgment.
This constitutes the decision and order of the Court.
Copr. (c) 2011, Secretary of State, State of New York
N.Y.Co.Ct. 2011.
Felix Storch Inc v Martinucci Desserts USA Inc
Slip Copy
END OF DOCUMENT