| Williams v Lovell Safety Mgt. Co., LLC |
| 2010 NY Slip Op 01788 [71 AD3d 671] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Glenn Williams et al., Appellants, v Lovell SafetyManagement Co., LLC, Respondent, et al., Defendant. (And a Third-PartyAction.) |
—[*1] Hoey, King, Toker & Epstein (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn andNaomi M. Taub], of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), enteredAugust 4, 2008, as granted the motion of the defendant Lovell Safety Management Co., LLC, forsummary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Glenn Williams alleged that he was injured when a safety demonstrationconducted by an employee of the defendant Corporate Safety & Health Consultants, Inc.(hereinafter Corporate), went awry. The plaintiff and his wife, suing derivatively, brought thisaction against Corporate, as well as the defendant Lovell Safety Management Co., LLC(hereinafter Lovell). According to the plaintiffs, Lovell is liable because Corporate is Lovell'ssubsidiary or alter ego. Lovell moved for summary judgment dismissing the complaint insofar asasserted against it, contending that there was no basis for piercing the corporate veil. TheSupreme Court, inter alia, granted the motion, and we affirm the order insofar as appealed from.
Generally, a plaintiff seeking to pierce the corporate veil must show that "completedomination" was exercised over a corporation with respect to "the transaction attacked," and"that such domination was used to commit a fraud or wrong against the plaintiff which resultedin plaintiff's injury" (Matter of Morris v New York State Dept. of Taxation & Fin., 82NY2d 135, 141 [1993]; see TNS Holdings v MKI Sec. Corp., 92 NY2d 335, 339 [1998]).Additionally, "the corporate veil will be pierced to achieve equity, even absent fraud, [w]hen acorporation has been so dominated by an individual or another corporation and its separate entityso ignored that it primarily transacts the dominator's business instead of its own and can becalled the other's alter ego" (Matter of Island Seafood Co. v Golub Corp., 303 AD2d892, 893 [2003] [internal quotation marks omitted]; see Austin Powder Co. vMcCullough, 216 AD2d 825, 827 [1995]; Pebble Cove Homeowners' Assn. v FidelityN.Y. FSB, 153 AD2d 843 [1989]).[*2]
In opposition to Lovell's prima facie showing ofentitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact withrespect to either domination or fraud (see Lofstad v S & R Fisheries, Inc., 45 AD3d 739, 744 [2007]; Millennium Constr., LLC vLoupolover, 44 AD3d 1016 [2007]; Mistrulli v McFinnigan, Inc., 39 AD3d 606, 607 [2007]; AetnaElec. Distrib. Co. v Homestead Elec., 279 AD2d 541, 541-542 [2001]; Pebble CoveHomeowners' Assn. v Fidelity N.Y. FSB, 153 AD2d at 843; cf. Matter of Goldman v Chapman, 44AD3d 938, 940 [2007]; Matter of Island Seafood Co. v Golub Corp., 303 AD2d at893). Accordingly, Lovell's motion was properly granted.
We note that the plaintiffs raise many arguments on appeal with respect to, inter alia,Corporate's purported undercapitalization and Lovell's purported malfeasance, fraud, and failureto negotiate with Corporate at arms' length. These contentions, however, are improperly raisedfor the first time on appeal (see Brownv Reinauer Transp. Cos., LLC, 67 AD3d 106, 114 [2009]; County of Orange vGrier, 30 AD3d 556 [2006]; Piano 230 N. Corp. v 230 N. Realty, 304 AD2d 544,545 [2003]; Crawford v Windmere Corp., 262 AD2d 268, 269 [1999]; Moezinia vBaroukhian, 247 AD2d 452, 453 [1998]). Dillon, J.P., Covello, Miller and Chambers, JJ.,concur.