| Shkolnik v Krutoy |
| 2009 NY Slip Op 06677 [65 AD3d 1214] |
| September 22, 2009 |
| Appellate Division, Second Department |
| Alexander Shkolnik, Respondent, v Igor Krutoy et al.,Defendants, and Romaro Corp., Doing Business as 7th Heaven, Formerly Known as VazemCorp., et al., Appellants. |
—[*1] Schrader & Schoenberg, LLP, New York, N.Y. (Bruce A. Schoenberg and David Schraderof counsel), for appellants Valerie Zemnovitch and Natasha Zemnovitch, also known as NataliaZemnovitch,also known as Natasha Zemnovitsch. Mathew S. Aboulafia, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendants RomaroCorp., doing business as 7th Heaven, formerly known as Vazem Corp., Zaliv Realty Corp.,formerly known as Bay Estates, LLC, Aron Grinshpun, Zelig Zeltser, and Sam Zeltser, and thedefendants Valerie Zemnovitch and Natasha Zemnovitch, also known as Natalia Zemnovitch,also known as Natasha Zemnovitsch, separately appeal, as limited by their briefs, from so muchof an order of the Supreme Court, Kings County (Johnson, J.), dated December 11, 2007, asdenied those branches of their separate motions which were for summary judgment dismissing somuch of the first and second causes of action as were to recover damages for breach of a contractdated January 12, 1999, and as denied that branch of the motion of the defendants Romaro Corp.,doing business as 7th Heaven, formerly known as Vazem Corp., Zaliv Realty Corp., formerlyknown as Bay Estates, LLC, Aron Grinshpun, Zelig Zeltser, and Sam Zeltser which was forsummary judgment on the issue of liability on their first counterclaim alleging the wrongfulfiling of a notice of pendency against certain real property.
Ordered that the appeal by the defendants Valerie Zemnovitch and Natasha Zemnovitch, alsoknown as Natalia Zemnovitch, also known as Natasha Zemnovitsch, from so much of the orderas denied that branch of the motion of the defendants Romaro Corp., doing business as 7thHeaven, formerly known as Vazem Corp., Zaliv Realty Corp., formerly known as Bay Estates,LLC, Aron Grinshpun, Zelig Zeltser, and Sam Zeltser which was for summary judgment on theissue of liability on the first counterclaim of those defendants is dismissed, as the defendantsValerie Zemnovitch and Natasha Zemnovitch, also known as Natalia Zemnovitch, also known asNatasha Zemnovitsch, are not aggrieved thereby (see CPLR 5511); and it is further,[*2]
Ordered that the order is affirmed insofar as appealedfrom; and it is further,
Ordered that the plaintiff is awarded one bill of costs, payable by the appellants appearingseparately and filing separate briefs.
This action arises from agreements pertaining to a catering business and restaurant and thereal property upon which they were located. After the agreements allegedly were breached, theplaintiff commenced this action. Various defendants separately moved for summary judgment,asserting, inter alia, that the action was, in part, time-barred, and that they were not parties to thesubject agreements. The Supreme Court granted the motion in part and denied it in part. As isrelevant here, the Supreme Court found that there were issues of fact regarding theinterrelationships among the individual and corporate defendants that precluded summaryjudgment. We affirm.
"While the law permits the incorporation of a business for the very purpose of escapingpersonal liability . . . equity will intervene to pierce the corporate veil and permitthe imposition of personal liability in order to avoid fraud or injustice" (Ventresca Realty Corp. v Houlihan, 28AD3d 537, 538 [2006] [internal quotation marks and citations omitted]; see Matter ofMorris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141 [1993]). A partyseeking to pierce the corporate veil must show that the owners of the corporation exercisedcomplete domination over it in the transaction at issue, and that such domination was used tocommit a fraud or wrong against the plaintiff under circumstances that constitute an abuse of theprivilege of doing business in the corporate form (see Matter of Morris v New York StateDept. of Taxation & Fin., 82 NY2d at 141-142; Nassau County v Richard Dattner Architect, P.C., 57 AD3d 494,495 [2008]; Millennium Constr., LLC vLoupolover, 44 AD3d 1016 [2007]).
Here, the appellants failed to make a prima facie showing of entitlement to judgment as amatter of law, inasmuch as they failed to demonstrate the absence of a triable issue of fact as towhether a certain contract dated January 12, 1999 was breached, and whether the corporate veilof certain of the named corporations should be pierced (see Wilkerson v 134 Kitty's Corp., 49 AD3d 718, 719 [2008];cf. Nassau County v Richard Dattner Architect, P.C., 57 AD3d at 496; StewartTenants Corp. v Square Indus., 269 AD2d 246, 248 [2000]). Accordingly, the SupremeCourt correctly denied the appellants' motions for summary judgment dismissing so much of thefirst and second causes of action as were to recover damages for breach of that contract.
The court did not improvidently exercise its discretion in denying that branch of the motionof the defendants Romaro Corp., doing business as 7th Heaven, formerly known as VazemCorp., Zaliv Realty Corp., formerly known as Bay Estates, LLC, Aron Grinshpun, Zelig Zeltser,and Sam Zeltser which was for summary judgment on the issue of liability on their firstcounterclaim for an award, pursuant to CPLR 6514 (c), of costs and expenses incurred as a resultof the plaintiff's filing of a notice of pendency, notwithstanding that the notice of pendency itselfwas subsequently cancelled as having been wrongfully filed (see Rabinowitz v LarkfieldBldg. Corp., 231 AD2d 703, 704 [1996]; Praver v Remsen Assoc., 181 AD2d 723[1992]; cf. Josefsson v Keller, 141 AD2d 700, 701 [1988]).
The appellants' remaining contentions either are without merit or are not properly before us(see CPLR 5501; Sarlo-Pinzur vPinzur, 59 AD3d 607, 608 [2009]; Robinson v Way, 57 AD3d 872, 873 [2008]).
Inasmuch as the plaintiff did not cross-appeal, his contentions regarding the timeliness of hisclaims arising out of a contract dated October 6, 1998 are not properly before this Court (see McGovern v Nassau County Dept. ofSocial Servs., 60 AD3d 1016, 1018 [2009]; Maggio v Becca Constr. Co., 229AD2d 426, 428 [1996]). Prudenti, P.J., Fisher, Miller and Lott, JJ., concur.