Baker v. Palmer , 778 N.Y.S.2d 343 ( 2004 )

Appeal from an order of the Supreme Court, Onondaga County (Thomas J. Murphy, J.), entered July 25, 2003. The order denied the motion of defendant Sandra Palmer, individually and doing business as Design Consultants, for summary judgment dismissing the amended complaint against her.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Supreme Court properly denied the motion of defendant Sandra Palmer, individually and doing business as Design Consultants, for summary judgment dismissing the amended complaint against her. It is uncontroverted that Sandra and her husband, defendant Michael Palmer, individually and doing business as M.J. Palmer Homes, do business under their respective assumed names as framing contractors, but that Sandra is the only one with insurance. All construction work, however, is performed by Michael, who is authorized to sign contracts for Sandra’s business. Michael entered into a contract with defendant Sherwood Custom Home Builders, Inc. (Sherwood), but the parties dispute the capacity in which he signed the contract. One contract was on the letterhead of “M.J. Palmer,” and another purported contract was on the letterhead of Design Consultants. Moreover, the Palmers’ joint tax returns for 1999 and 2000, submitted by Sherwood in opposition to the motion, show Sandra as the proprietor of a construction business named “M.J. Palmer” or “M.J. Palmer Construction.” Thus, there are issues of fact whether Sandra could be liable either as the proprietor of Design Consultants or as a proprietor of M.J. Palmer Homes, and her motion for summary judgment was therefore properly denied. Present—Pigott, Jr., P.J., Green, Pine, Wisner and Lawton, JJ.