Order, Supreme Court, New York County (Charles E. Ramos, J.), entered January 18, 2008, which denied the motion of plaintiffs and counterclaim defendants (collectively the Rose entities) for summary judgment on the complaint for monies paid to defendant Christie’s and to dismiss Christie’s defenses and counterclaims, unanimously affirmed, with costs.
This case arises from an alleged attempt to manipulate an art
Andrew Rose tried unsuccessfully to reach his own settlement with Christie’s for the return of funds he paid for items at the May 19, 2005 auction for which he was the highest bidder. Ultimately, plaintiffs, which are entities owned by Andrew Rose, commenced this action alleging breach of contract and unjust enrichment. In its answer, Christie’s asserted counterclaims alleging, inter alia, fraud and breach of contract, including a cause of action against all counterclaim defendants styled, “Fraud As An Agent.” In moving for summary judgment on the complaint for the return of money paid to Christie’s and to dismiss Christie’s counterclaims, the Rose entities argued that the settlement agreement between Berry-Hill and Christie’s released them from Christie’s counterclaims as Berry-Hill’s “agent.”
The court correctly rejected this argument. The mutual releases were not “clear and unambiguous as to the intention of the parties to cover the amount in dispute” (NAB Constr. Corp. v City of New York, 276 AD2d 388, 389 [2000]). Thus, as to the scope of the releases, “reference to parol evidence to discern the intentions of the parties [was] appropriate” (id. at 390). The purpose of the agreement was to resolve the disputes between
There is no evidence that Rose actually acted as an agent for Berry-Hill. A principal-agent relationship may be established by evidence of the “consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act” (Fils-Aime v Ryder TRS, Inc., 40 AD3d 917, 918 [2007] [internal quotation marks and citation omitted]), even where the agent is acting as a volunteer (see Restatement [Second] of Agency § 225). However, the artwork that was consigned to Christie’s was collateral for a loan to Berry-Hill from Rose through plaintiff ARCK Credit Company, and Rose was acting for his own benefit—to inflate collateral proceeds—when he contacted Christie’s with a proposal to sell Berry-Hill’s inventory, purportedly on behalf of a divorcing couple.
We have considered counterclaim defendants’ remaining arguments and find them unavailing. Concur—Andrias, J.P., Nardelli, Moskowitz, Renwick and Freedman, JJ.