| Damianos Realty Group, LLC v Fracchia |
| 2009 NY Slip Op 05744 [64 AD3d 537] |
| July 7, 2009 |
| Appellate Division, Second Department |
| Damianos Realty Group, LLC, Appellant, v Michael J.Fracchia, Respondent, et al., Defendants. |
—[*1] John L. Juliano, East Northport, N.Y., for respondent.
In an action, inter alia, to recover damages for the fraudulent conveyance of assets, theplaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court,Suffolk County (Pines, J.), entered July 17, 2007, as, after a nonjury trial, is in favor of it andagainst the defendant Michael J. Fracchia in the principal sum of only $26,836.23.
Ordered that the judgment is modified, on the law, by deleting therefrom the sum of$26,836.23, and substituting therefor the sum of $140,195.49; as so modified, the judgment isaffirmed insofar as appealed from, with costs to the plaintiff payable by the defendant Michael J.Fracchia.
On an appeal from an order denying the plaintiff's motion for summary judgment, this Courtdetermined that in its attempt to pierce the corporate veil and impose personal liability againstthe defendant Michael J. Fracchia, the plaintiff submitted evidence tending to show that Fracchia"exercised dominion over the corporation against which the plaintiff had obtained a judgment."The subject judgment was in the principal sum of $140,195.49, and was entered in a relatedaction on January 24, 2003. However, this Court further determined that the Supreme Courtproperly denied the plaintiff's motion for summary judgment, as it did not establish, prima facie,that Fracchia "used such dominion and control to commit a fraud or wrong against the plaintiffwhich resulted in injury" (DamianosRealty Group, LLC v Fracchia, 35 AD3d 344, 344-345 [2006] [citing, inter alia,Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 140-141(1993)]).
After a nonjury trial, the Supreme Court, in effect, concluded that Fracchia had committed awrong against the plaintiff, but awarded damages in the principal sum of only $26,836.23.
Upon review of a determination rendered after a nonjury trial, this Court's authority "is asbroad as that of the trial court," and this Court may "render the judgment it finds warranted bythe facts, taking into account in a close case 'the fact that the trial judge had the advantage ofseeing the witnesses' " (Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d [*2]492, 499 [1983], quoting YorkMtge. Corp. v Clotar Constr. Corp., 254 NY 128, 133-134 [1930]; see Candela v Byron Chem. Co., Inc.,54 AD3d 306 [2008]; B. ReitmanBlacktop, Inc. v Missirlian, 52 AD3d 752, 753 [2008]).
We agree with the Supreme Court that the evidence fully supports the determination thatFracchia used his dominion over the subject corporation to commit a wrong against the plaintiff,which resulted in the plaintiff's injury. We further conclude, however, that the injury to theplaintiff was the full amount of its uncollected judgment—that is, $140,195.49. Wemodify the judgment on appeal accordingly. Rivera, J.P., Miller, Carni and Eng, JJ., concur.[See 2007 NY Slip Op 31491(U).]