Heine v. Papp

97 A.D.2d 929, 471 N.Y.S.2d 18, 1983 N.Y. App. Div. LEXIS 20719

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1983
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term (Torraca, J.), entered May 10,1983 in Ulster County, which denied a motion by defendants Bertha Papp, Albert Sporaco, Jr., and Albert Sporaco, Sr., to dismiss the complaint. In this suit seeking money damages and injunctive relief, plaintiffs charge defendants with constructing and maintaining an inadequate sewage system on property owned by defendant Bertha Papp and rented to defendants Albert and Janet Molt. Because of the inadequacy of the sewage system, filth and waste are alleged to flow onto plaintiffs’ premises and interfere with plaintiffs’ use and enjoyment of their property. Defendant Papp, who is 85 years of age, is currently residing in a nursing home. Defendants Albert Sporaco, Sr., and Albert Sporaco, Jr., sued “as agents of Bertha Papp”, are her son-in-law and grandson, respectively. When the Sporacos’ motion to dismiss the complaint was denied by Special Term, this appeal followed. Their appellate contention is that since they are not the agents of Bertha Papp, the complaint, insofar as it is directed at them, should be dismissed.

* We affirm. At this juncture, it cannot be said as a matter of law that the Sporacos were not Papp’s agents. Plaintiffs maintain that these defendants indorsed and negotiated checks drawn by the Molts, made payable to"Papp, as rental payments on the property that is the subject of this action. Also, rental receipts were apparently issued by Elizabeth Sporaco, wife of one of the defendants. Inasmuch as an agency relationship may be established by conduct, oral agreement or written instrument (People v Stone, 80 Mise 2d 536, 539), dismissal of the complaint at this stage of the proceedings would clearly be inappropriate. Defendants’ reliance on subdivision 1 of section 5-703 of the General Obligations Law and the absence of a written instrument evidencing the agency relationship is misplaced. Order affirmed, with costs. Sweeney, J. P., Mikoll, Yesawich, Jr., Weiss and Levine, JJ., concur.

Defendant Papp also joined in the motion to dismiss on the ground that she was mentally incompetent. The notice of appeal filed from the order denying the motion lists defendant Papp as an appellant. Since the brief filed on behalf of the appellants addresses only the issue of whether the Sporacos were agents of Papp, it appears that Papp has abandoned her appeal.