Kelsol Diamond Co., Inc. v. Stuart Lerner, Inc.

286 A.D.2d 586, 730 N.Y.S.2d 218, 2001 N.Y. App. Div. LEXIS 8395

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 13, 2001
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered January 8, 2001, in an action for breach of contract, insofar as appealed from as limited by the briefs, in favor of plaintiff and against the individual defendant, and bringing up for review an order, same court and Justice, entered November 28, 2000, which granted plaintiffs motion for summary judgment, unanimously affirmed, with costs.

The motion court correctly found an intent on the part of the individual defendant to assume liability for the debts of the corporate defendant of which he was president (see, 14A NY Jur 2d, Business Relationships, § 756, at 424-425) in his attempt to settle with plaintiff by sending it his personal check, and in the documents of previous transactions between the parties addressed to the individual defendant as well as the corporation. Such evidence was in direct response to allegations first raised by defendants in opposition papers, and therefore properly considered (see, Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630; Dannasch v Bifulco, 184 AD2d 415, 417). Furthermore, defendants failed to seek leave to submit a surreply, which obviously would have provided an appropriate opportunity to respond. Concur — Sullivan, P. J., Nardelli, Ellerin, Buckley and Marlow, JJ.