| Neurological Servs. of Queens, P.C. v Farmingville Family Med. Care,PLLC |
| 2009 NY Slip Op 04400 [63 AD3d 703] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Neurological Services of Queens, P.C.,Respondent, v Farmingville Family Medical Care, PLLC, et al., Defendants, andVasiliki Kadianakis, Also Known as Kiki Kadianakis, Appellant. |
—[*1] Lowell B. Davis, Carle Place, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant VasilikiKadianakis, D.O., also known as Kiki Kadianakis, D.O., appeals from an order of the SupremeCourt, Queens County (Flaherty, J.), dated June 5, 2008, which converted her motion pursuant toCPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against her into one for summaryjudgment, and thereupon denied the motion.
Ordered that the order is reversed, on the law, with costs, and the motion pursuant to CPLR3211 (a) (7) to dismiss the complaint insofar as asserted against the appellant is granted.
The Supreme Court erred in converting the motion of the defendant Vasiliki Kadianakis,D.O., also known as Kiki Kadianakis, D.O., pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against her into one for summary judgment without providingnotice to the parties as set forth in CPLR 3211 (c) (see Rovello v Orofino Realty Co., 40NY2d 633 [1976]; Bowes v Healy,40 AD3d 566 [2007]; Moutafis vOsborne, 18 AD3d 723 [2005]). None of the recognized exceptions to the noticerequirement is applicable here (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988];Bowes v Healy, 40 AD3d at 566; Moutafis v Osborne, 18 AD3d at 723;Shabtai v City of New York, 308 AD2d 532, 533 [2003]). Thus, this Court will apply thestandards applicable to a motion to dismiss pursuant to CPLR 3211.[*2]
Accepting the facts as alleged in the complaint as true,and according the plaintiff the benefit of every possible favorable inference (see Leon vMartinez, 84 NY2d 83 [1994]), the complaint fails to state a cause of action against thedefendant Kadianakis (see CPLR 3211 [a] [7]). The complaint fails to set forth anyallegations which, if true, would justify piercing the corporate veil and holding Kadianakispersonally liable in her individual capacity (see Matter of Morris v New York State Dept. ofTaxation & Fin., 82 NY2d 135, 141 [1993]; Millennium Constr., LLC v Loupolover, 44 AD3d 1016, 1016[2007]; Matter of Goldman vChapman, 44 AD3d 938, 939 [2007]; Levin v Isayeu, 27 AD3d 425 [2006]; Hyland Meat Co. vTsagarakis, 202 AD2d 552 [1994]; cf. Pellarin v Moon Bay Dev. Corp., 29 AD3d 553 [2006]). Dillon,J.P., Angiolillo, Dickerson and Eng, JJ., concur.