| Commissioners of the State Ins. Fund v Ramos |
| 2011 NY Slip Op 00035 [80 AD3d 447] |
| January 6, 2011 |
| Appellate Division, First Department |
| The Commissioners of the State Insurance Fund,Appellant-Respondent, v Manual Ramos et al., Respondents-Appellants. J.M.R. Concrete ofLong Island Corp., Judgment Debtor. |
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Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 14, 2009,which denied plaintiff's motion for summary judgment holding defendants liable for the judgment enteredagainst the judgment debtor and defendants' motions for summary judgment dismissing the complaint,unanimously affirmed, without costs.
A number of factors suggest that defendant corporation is the alter ego of the judgment debtor,including the use of essentially the same name, the fact that the judgment debtor was not formallydissolved, and the overlap of employees, ownership, physical plant and equipment. In addition, theindividual defendants collectively owned two-thirds of the judgment debtor. However, although plaintiffargues that the judgment debtor was "stripped of its assets," one of the individual defendants testifiedthat equipment of the judgment debtor, including pumps, trucks and other vehicles, was purchased atfair market value. Moreover, the other principal of the judgment debtor has no ownership in defendantcorporation. He testified that he made the decision to cease the judgment debtor's operations and thathe so decided because the corporation was losing money and his health had declined. Furthermore, theindividual defendants, the principals of defendant corporation, invested substantial sums in defendantcorporation. On this record, whether the individual defendants sufficiently dominated the judgmentdebtor cannot be determined as a matter of law (see Wm. Passalacqua Bldrs., Inc. v ResnickDevs. S., Inc., 933 F2d 131, 138-139 [1991]). Similarly, and particularly because it is not clearthat the individual defendants knew of the liability to plaintiff, the record does not demonstrateconclusively the requisite wrongful [*2]or unjust act toward plaintiff(see Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 142[1993]). Concur—Gonzalez, P.J., Saxe, McGuire, Acosta and Abdus-Salaam, JJ.