Clark v. Pine Hill Homes, Inc.

112 A.D.2d 755

Opinion

Judgment unanimously affirmed, with costs. Memorandum: The trial court properly found Pine Hill Homes, Inc. and Floyd Reynolds jointly and severely liable for their failure to construct plaintiffs home in a workmanlike manner. This was not, as Reynolds contends, an action for breach of contract. Plaintiffs case was pleaded and tried on the theory that Reynolds was negligent in the performance and supervision of the work of constructing plaintiffs home and that his negligence resulted in unworkmanlike construction for which he should be held personally liable. The general rule is that an officer of a corporation who participates in the commission of a tort by the corporation is personally liable therefor. A corporate officer is not held liable for the negligence of the corporation merely because of his official relationship to it. It must be shown that the officer was a participant in the wrongful conduct (Matter of State of New York v Daro Chartours, 72 AD2d 872, 873; Cleland v Fort Ticonderoga Assn., 71 AD2d 740; Bailey v Baker’s Air Force Gas Corp., 50 AD2d 129; La Lumia v Schwartz, 23 AD2d 668; Michaels v Lispenard Holding Corp., 11 AD2d 12; 3A Fletcher, Cyclopedia of Private Corporations § 1137 [rev permanent ed 1975]; 15 NY Jur 2d, Business Relationships, §§ 1076, 1086). The evidence at trial established, and indeed Reynolds himself testified, that he supervised the construction of the basement drainage system, that he checked the drain tile after it was laid, was present when it was covered with gravel, and was also present when the chimney was being constructed. He admitted further that he had personally done some of the work. Since he personally supervised or participated in the negligent conduct which gave rise to plaintiffs damages, it was not error for the court to hold him individually liable. (Appeal from judgment of Allegany County Court, Sprague, J. —negligent construction.) Present — Hancock, Jr., J. P., Den-man, Green, O’Donnell and Pine, JJ.