Param Diamonds, Inc. v. Raydiam Corp.

—Order, Supreme Court, New York County (Lorraine Miller, J.), entered March 16, 1999, which denied defendant-appellant’s motion for summary judgment, unanimously affirmed, without costs. Summary judgment was properly denied. Appellant’s contention that he signed an inspection memorandum accepting delivery of diamonds as agent of the corporate defendant does not refute plaintiffs allegation that the diamonds were sold and delivered to the corporate defendant at appellant’s specific instance or that both defendants were liable for the sum owed. The documents relied upon by appellant do not, on their face, eliminate all factual issues as to whether the parties intended to hold appellant personally liable in addition to the corporate defendant and appellant failed to offer proof extrinsic to the documents to support his position (compare, Kaszirer Diamonds v Zohar Creations, 146 AD2d 492, with Goldstar Smoked Fish v Greenfield Partners, 206 AD2d 457, lv denied 85 NY2d 803). The deficiency of appellant’s proof leaves no occasion for considering the quality of plaintiffs opposing proof (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). Concur — Nardelli, J. P., Tom, Mazzarelli, Wallach and Buckley, JJ.