| Medical Arts Off. Servs., Inc. v Erber |
| 2011 NY Slip Op 07818 [89 AD3d 698] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Medical Arts Office Services, Inc., CounterclaimDefendant-Appellant, v Gregory Erber, Counterclaim Plaintiff-Respondent. BertBrodsky et al., Additional Counterclaim Defendants-Appellants. |
—[*1] Kaiser Saurborn & Mair, P.C. (Goldberg & Rimberg PLLC, New York, N.Y. [IsraelGoldberg], of counsel), for defendant/counterclaim plaintiff-respondent.
In an action, inter alia, for a judgment declaring, among other things, that the employment ofthe defendant/counterclaim plaintiff was properly terminated for cause pursuant to a contractwith the plaintiff/counterclaim defendant, Medical Arts Office Services, Inc., theplaintiff/counterclaim defendant and the additional counterclaim defendants appeal from an orderof the Supreme Court, Nassau County (Bucaria, J.), dated March 14, 2011, which denied theirmotion pursuant to CPLR 3211 (a) (7) to dismiss the counterclaims insofar as asserted againstthe additional counterclaim defendants for failure to state a cause of action and granted the crossmotion of the defendant/counterclaim plaintiff pursuant to CPLR 3025 (b) for leave to serve andfile a second amended answer.
Ordered that the order is affirmed, with costs.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Amotion to dismiss pursuant to CPLR 3211 (a) (7) will fail if, "taking all facts alleged as true andaccording them every possible inference favorable to the plaintiff, the complaint states in somerecognizable form any cause of action known to our law" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker,LLP, 38 AD3d 34, 38 [2006]).
Here, the counterclaims contained in the amended answer of the defendant/counterclaimplaintiff, Gregory Erber, set forth sufficient factual allegations to state a claim against theadditional counterclaim defendants under a theory of piercing the corporate veil. The amendedanswer alleged that the plaintiff/counterclaim defendant, Medical Arts Office Services, [*2]Inc. (hereinafter Medical Arts), was dominated by the additionalcounterclaim defendant Bert Brodsky, the owner of Medical Arts, acting individually andthrough the additional counterclaim defendant entities, and that such domination was used tocommit "a wrong or injustice against [Erber] such that a court in equity [may] intervene"(Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 142 [1993];see ABN AMRO Bank, N.V. v MBIAInc., 17 NY3d 208, 229 [2011]; Peery v United Capital Corp., 84 AD3d 1201, 1203 [2011]; Gateway I Group, Inc. v Park Ave.Physicians, P.C., 62 AD3d 141, 145-146 [2009]). Accordingly, the Supreme Courtproperly denied the motion of Medical Arts and the additional counterclaim defendants pursuantto CPLR 3211 (a) (7) to dismiss the counterclaims insofar as asserted against the additionalcounterclaim defendants for failure to state a cause of action.
Moreover, the Supreme Court properly granted Erber's cross motion pursuant to CPLR 3025(b) for leave to serve and file a second amended answer. The proposed amendments were neitherpalpably insufficient nor patently devoid of merit, and there was no evidence that thoseamendments would prejudice or surprise the defendants (see Zorn v Gilbert, 60 AD3d 850 [2009]). Rivera, J.P., Florio,Austin and Sgroi, JJ., concur.