| Sound Communications, Inc. v Rack & Roll, Inc. |
| 2011 NY Slip Op 07262 [88 AD3d 523] |
| October 18, 2011 |
| Appellate Division, First Department |
| Sound Communications, Inc., Respondent, v Rack andRoll, Inc., et al., Appellants. |
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Law Office of Steven E. Rosenfeld, P.C., New York (Isaiah Juste of counsel), forrespondent.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered June 7, 2010,which denied the motion by defendants Lance Wolfson, Marla Wolfson and Premier ContainerCorp. pursuant to CPLR 3211 (a) (7) and 3212 for an order dismissing the complaint,unanimously reversed, on the law, without costs, those defendants' motion granted and thecomplaint dismissed as against them.
Plaintiff sues to recover fees due under an oral agreement for services rendered in theadvertisement of a product known as the "Rack and Roll Paper Towel Storage Holder." All ofplaintiff's underlying invoices, which are annexed to the complaint, are addressed to defendantRack and Roll, LLC only. Therefore, the complaint fails to state an account stated cause of actionagainst the moving defendants (see e.g.Roth Law Firm, PLLC v Sands, 82 AD3d 675, 676 [2011]).
Plaintiff also failed to state a fraud cause of action against the moving defendants. Plaintiffessentially alleges that defendants never intended to honor a promise to pay plaintiff's fees. "It iswell settled that a cause of action for fraud will not arise when the only fraud charged relates to abreach of contract" (Gordon v Dino De Laurentiis Corp., 141 AD2d 435, 436 [1988][citation omitted]). Plaintiff's negligent misrepresentation cause of action should have beensimilarly dismissed because this claim also relates to an alleged contract and there is noallegation of a special relationship between plaintiff and the moving defendants (see Morris vPutnam Berkley, Inc., 259 AD2d 425, 426 [1999]). Defendants have also made a prima facieshowing that the Wolfsons did not contract with plaintiff as individuals or on behalf of Premier.The moving defendants were therefore entitled to judgment as a matter of law and plaintiffsconclusory assertions were insufficient to defeat summary judgment with respect to the contractand unjust enrichment claims (see Spaulding v Benenati, 57 NY2d 418, 425 [1982]).
Plaintiff's argument that defendants' original answer, which was verified by counsel, containsadmissions is also unavailing. The assertions in the pleading were made "upon information andbelief" and do not constitute formal or informal judicial admissions (see Scolite Intl. Corp. vVincent J. Smith, Inc., 68 AD2d 417, 421 [1979]).
The court should also have rejected plaintiff's attempt to pierce Rack and Roll's corporateveil. "The party seeking to pierce the corporate veil must establish that the owners, [*2]through their domination, abused the privilege of doing business inthe corporate form to perpetrate a wrong or injustice against that party such that a court in equitywill intervene" (Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d135, 142 [1993]). The complaint merely alleges that Rack and Roll functioned as the movingdefendants' alter ego. It is not sufficiently alleged that Rack and Roll's status as a limited liabilitycompany was used to commit a fraud against plaintiff (see e.g. Albstein v Elany Contr. Corp., 30 AD3d 210 [2006], lvdenied 7 NY3d 712 [2006]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Andrias, J.P., Friedman, Renwick, DeGrasse, and Abdus-Salaam JJ.