| Bailon v Guane Coach Corp. |
| 2010 NY Slip Op 08791 [78 AD3d 608] |
| November 30, 2010 |
| Appellate Division, First Department |
| Clara Bailon, Appellant-Respondent, et al., Plaintiff, v GuaneCoach Corp. et al., Defendants, and Oliverio Calderon et al.,Respondents-Appellants. |
—[*1]
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered June 26, 2009, which, ineffect, denied plaintiffs' motion to settle judgment against defendants Oliverio and Sylvia Calderon in theamount of $29,575,000, unanimously affirmed, without costs.
We find no error in the default taken against the Calderons. However, the motion court properlydeclined to enter judgment against the Calderons for the amount of the $29 million jury verdict in favorof plaintiff Clara Bailon.
The default order against the Calderons directed that an inquest and assessment of damages againstthem be conducted at the time of trial against the nondefaulting defendants, but the record reflects noaction taken by plaintiffs at trial regarding their claim against the Calderons. To the extent that plaintiffs'theory against the Calderons was based on alter ego liability, arising out of the Calderons' disregard ofthe corporate form of Guane Coach Corp., there would have been no need for a separate damagesdetermination against them, since the Calderons would be responsible for the corporation's liabilities(see Sterling Doubleday Enters. v Marro, 238 AD2d 502, 503 [1997]). However, under thealter ego theory, the Calderons must be treated as having stepped into the shoes of the corporation, andtheir liability would be that of Guane (see Trans Intl. Corp. v Clear View Tech., 278 AD2d 1,1-2 [2000]). By executing a release in favor of Guane upon payment by its insurer of $100,000,plaintiffs necessarily released the Calderons as well (see DePinto v Ashley Scott, Inc., 222AD2d 288, 289-290 [1995]). Nor may plaintiffs rely on some other theory against the Calderons,since they failed to establish at inquest the extent of their liability under any other theory. Accordingly,plaintiffs were not entitled to the judgment they sought against the Calderons.[*2]
We have considered the parties' remaining arguments and findthem unavailing. Concur—Saxe, J.P., Acosta, Freedman, Richter and Abdus-Salaam, JJ.