A & M WALLBOARD, INC. v. MARINA TOWERS ASSOCS.


169 A.D.2d 751 (1991)

A & M Wallboard, Inc., Respondent, v. Marina Towers Associates et al., Appellants, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, Second Department.

January 22, 1991


Ordered that the judgment is affirmed insofar as appealed from; and it is further,

Ordered that the order is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

Contrary to the appellants' contention, the record supports the jury's conclusion that a contract was formed between the parties. In this regard, we note that the evidence adduced at trial was sufficient to establish that all of the essential elements of the contract, including the price, the scope of the work to be performed, and the time of performance, were agreed upon by the parties.

The appellants' further contention that the defendant Samuel Lefrak could not have bound the defendant LFO Construction Corp. (hereinafter LFO) to the subject contract because the plaintiff was unaware that Lefrak was an officer or agent of LFO, or because Lefrak lacked the authority to bind LFO, is without merit. The record supports the jury's conclusion that the plaintiff's President, Joseph Giamboi, knew or assumed that Samuel Lefrak was an officer of LFO when the contract was made, and that Samuel Lefrak was in fact the President and Chairman of the Board of LFO and had actual authority to enter into such contracts on its behalf. As President and Chairman of the Board of LFO, Samuel Lefrak is presumed to have had authority to enter into contracts in the ordinary course of the corporation's business (see, Twyeffort v Unexcelled Mfg. Co., 263 N.Y. 585; see also, West View Hills v Lizau Realty Corp., 6 N.Y.2d 344, 346). Moreover, it is undisputed that it was within the ordinary course of LFO's business as the general contractor for a construction project to enter into subcontracts such as the one at bar.

Although the appellants' further urge that the consent of all of the partners of a separate partnership entity was required to authorize Samuel Lefrak to act on LFO's behalf, this claim is contradicted by the trial testimony of the defendants' general counsel who conceded that neither that partnership nor the terms of its partnership agreement had anything to do with LFO. Moreover, if there were any special limitations on Samuel Lefrak's authority as LFO's President, it was the obligation of LFO or Lefrak to communicate such limitations to the plaintiff and to convince the jury that such limitations had been communicated (see, Bosak v Parrish, 252 N.Y. 212; Bradford Co. v Dunn, 250 N.Y. 461). However, the appellants failed to offer any evidence to establish that the existence of this separate partnership entity placed any limitations upon Samuel Lefrak's authority to bind LFO, or that any such limitation was communicated to the plaintiff. Accordingly, we reject the appellants' claim that Samuel Lefrak's authority to bind LFO to the subject contract was limited.

We have considered the appellants' remaining contentions and find them to be without merit.


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