| Allstate ATM Corp. v E.S.A. Holding Corp. |
| 2012 NY Slip Op 05898 [98 AD3d 541] |
| August 8, 2012 |
| Appellate Division, Second Department |
| Allstate ATM Corp., Appellant, v E.S.A. Holding Corp. etal., Respondents. |
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In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by its notice of appeal and brief, from so much of an order of the Supreme Court, KingsCounty (Schmidt, J.), dated June 15, 2011, as granted that branch of the defendants' motionwhich was, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the original complaint, andgranted that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211 (a)(7) to dismiss the amended complaint insofar as asserted against the defendant Manocher M.Mehrfar.
Ordered that the appeal from so much of the order as granted that branch of the defendants'motion which was, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the original complaint isdismissed as academic, without costs or disbursements; and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
Since the original complaint was superseded by the amended complaint, the plaintiff's appealfrom so much of the order as granted that branch of the defendants' motion which was, in effect,pursuant to CPLR 3211 (a) (7) to dismiss the original complaint has been rendered academic (see DePasquale v Estate ofDePasquale, 44 AD3d 606 [2007]; Weber v Goss, 18 AD3d 540 [2005]; Elegante Leasing, Ltd. v Cross Trans Svc,Inc., 11 AD3d 650 [2004]).
The Supreme Court properly granted that branch of the defendants' motion which was, ineffect, pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofar as assertedagainst the defendant Manocher M. Mehrfar. Contrary to the plaintiff's contention, the amendedcomplaint does not plead sufficient facts to hold Mehrfar personally liable under a theory ofpiercing [*2]the corporate veil. "In order for a plaintiff to state aviable claim against a shareholder of a corporation in his or her individual capacity for actionspurportedly taken on behalf of the corporation, [the] plaintiff must allege facts that, if proved,indicate that the shareholder exercised complete domination and control over the corporation and'abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice' "(East Hampton Union Free School Dist.v Sandpebble Bldrs., Inc., 16 NY3d 775, 776 [2011], quoting Matter of Morris vNew York State Dept. of Taxation & Fin., 82 NY2d 135, 141-142 [1993]). Factors to beconsidered in determining whether an individual has abused the privilege of doing business in thecorporate form include the failure to adhere to corporate formalities, inadequate capitalization,commingling of assets, and the personal use of corporate funds (see Grammas v Lockwood Assoc.,LLC, 95 AD3d 1073 [2012]; East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66AD3d 122, 127 [2009], affd 16 NY3d 775 [2011]; Millennium Constr., LLC vLoupolover, 44 AD3d 1016, 1017 [2007]).
Here, the amended complaint did not allege that Mehrfar exercised complete domination andcontrol over the defendant corporation, or that he abused the privilege of doing business in thecorporate form to perpetrate a wrong or injustice against the plaintiff. The amended complaintdid not allege any lack of corporate formalities, commingling of funds, or undercapitalization ofthe defendant corporation, or that Mehrfar made personal use of corporate funds (see B. Merrick Rd., LLC v Chriso FoodServs., Inc., 95 AD3d 913 [2012]). Contrary to the plaintiff's contention, the affidavit ofits principal and owner, which was submitted in opposition to the defendants' motion, did notremedy the defects in the amended complaint (see Barker v Time Warner Cable, Inc., 83 AD3d 750, 751 [2011]).
The plaintiff's remaining contention does not warrant reversal. Florio, J.P., Balkin, Hall andMiller, JJ., concur.