| Roohan v First Guar. Mtge., LLC |
| 2012 NY Slip Op 05373 [97 AD3d 891] |
| July 5, 2012 |
| Appellate Division, Third Department |
| J. Thomas Roohan, Appellant, v First Guarantee Mortgage, LLC, etal., Respondents. |
—[*1] Salmon & Salmon, LLP, Amsterdam (James F. Salmon of counsel), forrespondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Ferradino, J.), entered August 31,2011 in Saratoga County, which, among other things, granted defendant David Silipigno's crossmotion for summary judgment dismissing the complaint against him.
Defendant First Guarantee Mortgage, LLC and its predecessor leased office space in abuilding owned by plaintiff from May 2000 through a term that was to end on August 31, 2010.After First Guarantee ceased operation, abandoned the premises and stopped making paymentsprior to the end of the lease period, plaintiff commenced this action against it. Plaintiff alsosought to pierce the corporate veil and hold defendant David Silipigno personally liable for FirstGuarantee's actions. Silipigno asserted various counterclaims, which plaintiff moved to dismiss,and Silipigno responded by cross-moving for summary judgment dismissing the complaintagainst him. Supreme Court granted both motions, and plaintiff now appeals.
Silipigno contends that he had no ownership or management role in First Guarantee, did notsign the lease or guarantee its performance and, thus, could not be held liable for its breach. Anonowner, however, may be held liable for a corporation's torts if he or she "dominated andcontrolled [it] to such an extent that [he or she] may be considered its equitable owner[ ]"(Guilder v Corinth Constr. Corp., 235 AD2d 619, 619 [1997]; see Freeman vComplex Computing Co., Inc., 119 F3d 1044, 1051 [2d Cir 1997]; Lally v CatskillAirways, 198 AD2d 643, 645 [1993]). Plaintiff's claim against Silipigno is based uponallegations that Silipigno dominated First Guarantee's affairs and, in so doing, committed a fraudor wrong that injured plaintiff (see Matter of Morris v New York State Dept. of Taxation &Fin., 82 NY2d 135, 141-142 [1993]; ARB Upstate Communications LLC v R.J. Reuter, L.L.C., 93 AD3d929, 931 [2012]).
In that regard, plaintiff presented evidence that Silipigno founded First Guarantee and wasextensively involved with its operation, depositing and withdrawing substantial sums of moneyfrom its coffers and profiting from real property deeded to him by it. Indeed, plaintiff's claimagainst Silipigno stems from the allegation that he withdrew $5,000,000 from First Guarantee'saccounts, negating the assurances of solvency made by it to obtain the lease and rendering it anempty, judgment-proof shell.[FN*] Even assuming Silipigno made a prima facie showing of entitlement to summary judgment,plaintiff has presented evidence sufficient to raise a question of fact regarding whether Silipignowas the "equitable owner[ ]" of First Guarantee (Guilder v Corinth Constr. Corp., 235AD2d at 619; see Teachers Ins. AnnuityAssn. of Am. v Cohen's Fashion Opt. of 485 Lexington Ave., Inc., 45 AD3d 317, 318[2007]; see also Gateway I Group, Inc. vPark Ave. Physicians, P.C., 62 AD3d 141, 148 [2009]; cf. Fantazia Intl. Corp. v CPL Furs N.Y.,Inc., 67 AD3d 511, 512-513 [2009]).
Finally, Silipigno has abandoned any arguments regarding Supreme Court's dismissal of hiscounterclaims by failing to raise them in his brief (see Perkins v Kapsokefalos, 57 AD3d 1189, 1191 n 2 [2008], lvdenied 12 NY3d 705 [2009]).
Kavanagh, Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is modified, onthe law, with costs to plaintiff, by reversing so much thereof as granted defendant DavidSilipigno's cross motion for summary judgment; said cross motion denied; and, as so modified,affirmed.
Footnote *: We note that plaintiff's efforts toobtain evidence to support his claims have been hampered by Silipigno's refusal to cooperatewith subpoenas intended to clarify the extent of his involvement with First Guarantee(see CPLR 3212 [f]; 181 S.Franklin Assoc. v Y & R Assoc., 6 AD3d 594, 594 [2004]).