| Logan-Baldwin v L.S.M. Gen. Contrs., Inc. |
| 2008 NY Slip Op 01191 [48 AD3d 1220] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| Emmelyn Logan-Baldwin et al., Appellants, v L.S.M. GeneralContractors, Inc., et al., Respondents, et al., Defendants. |
—[*1] Phillips Lytle LLP, Rochester (Steven E. Laprade of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), enteredDecember 27, 2006 in a breach of contract and fraud action. The order granted the cross motionof defendant Bart Noto, individually and as president of L.S.M. General Contractors, Inc., forsummary judgment dismissing the complaint against him individually and dismissing the secondthrough seventh causes of action against defendant L.S.M. General Contractors, Inc.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action to recover damages arising from thereplacement of their roof by a subcontractor hired by defendant L.S.M. General Contractors, Inc.(L.S.M.). Bart Noto (defendant), who was sued individually and as president of L.S.M.,cross-moved for summary judgment dismissing the entire complaint against him individually,and for summary judgment dismissing the second through seventh causes of action againstL.S.M. Supreme Court properly granted the cross motion.
Defendant met his initial burden with respect to the first cause of action, for breach ofcontract, by establishing as a matter of law that he executed the contract with plaintiffs in hiscapacity as president of L.S.M. and that he did not intend to assume any personal liabilitypursuant to that contract (see Noel v L &M Holding Corp., 35 AD3d 681 [2006]; Metropolitan Switch Bd. Co., Inc. v Amici Assoc., Inc., 20 AD3d455, 455-456 [2005]; Gottehrer v Viet-Hoa Co., 170 AD2d 648 [1991]). Althoughplaintiffs contend that they are entitled to pierce the corporate veil in order to hold defendantindividually liable for the allegedly substandard work of the subcontractor hired by L.S.M., wereject that contention. Plaintiffs failed to raise an issue of fact whether defendant controlledL.S.M. and if so whether, "through [his] domination, [he] abused the privilege of doing businessin the corporate form to perpetrate a wrong or injustice against [those parties]" (Matter ofMorris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 142 [1993]; see [*2]Millennium Constr., LLC v Loupolover, 44 AD3d 1016[2007]).
Contrary to plaintiffs' further contention, the court properly granted those parts of the crossmotion seeking summary judgment dismissing the remaining causes of action, for fraud, againstboth defendant and L.S.M. "It is well established that a separate cause of action for fraud is notstated where, as here, the alleged fraud relates to the breach of contract" (LaBarte v SenecaResources Corp., 285 AD2d 974, 976 [2001]; see also Clement v Delaney Realty Corp., 45 AD3d 519, 521[2007]; Carle Place Union Free SchoolDist. v Bat-Jac Constr., Inc., 28 AD3d 596, 598-599 [2006]).
Finally, we reject plaintiffs' contention that the court acted prematurely in determining thecross motion inasmuch as plaintiffs failed to demonstrate that "facts essential to justifyopposition may exist but cannot then be stated" (CPLR 3212 [f]; see Global Mins. & Metals Corp. vHolme, 35 AD3d 93, 102-103 [2006], lv denied 8 NY3d 804 [2007]). In anyevent, we note that the court expressly stated that it was granting that part of defendant's crossmotion with respect to the first cause of action "without prejudice to plaintiffs to pursue apiercing the corporate veil theory after discovery." Present—Scudder, P.J., Centra, Faheyand Green, JJ.