| Baker, Sanders, Barshay, Grossman, Fass, Muhlstock &Neuworth, LLC v Comprehensive Mental Assessment & Med. Care, P.C. |
| 2013 NY Slip Op 07004 [110 AD3d 1022] |
| October 30, 2013 |
| Appellate Division, Second Department |
| Baker, Sanders, Barshay, Grossman, Fass, Muhlstock &Neuworth, LLC, Plaintiff/CounterclaimDefendant-Respondent, v Comprehensive Mental Assessment & Medical Care,P.C., et al., Defendants/Counterclaim Plaintiffs-Appellants-Respondents, et al.,Defendant. David Barshay, Additional Counterclaim Defendant-Respondent-Appellant,et al., Additional Counterclaim Defendants. (And Third-PartyActions.) |
—[*1] David M. Barshay, Garden City, N.Y., additional counterclaimdefendant-respondent-appellant pro se. Davidoff Hutcher & Citron LLP, Garden City, N.Y. (Jonathan Cader of counsel), forplaintiff/counterclaim defendant-respondent.
In a consolidated action, inter alia, to recover legal fees, the defendants/counterclaimplaintiffs appeal, as limited by their brief, from so much of an order of the SupremeCourt, Nassau County (Warshawsky, J.), entered May 16, 2011, as denied their motionpursuant to CPLR 3211 (a) (3) and 1025 to dismiss the second amended verifiedcomplaint on the ground that the plaintiff/counterclaim defendant had no legal capacityto sue and granted those branches of the cross motion of the additional counterclaimdefendant David Barshay pursuant to CPLR 3211 (a) (7) which were to dismiss their firstthrough eighth counterclaims insofar as asserted against him, and the additionalcounterclaim defendant David Barshay cross-appeals, as limited by his brief, from somuch of the same order as denied that branch of his cross motion pursuant to CPLR 3211(a) (7) which was to dismiss the ninth counterclaim of the defendants/counterclaimplaintiffs insofar as asserted against him.
Ordered that the order is modified, on the law, by deleting the provisions thereofgranting those branches of the cross motion of the additional counterclaim defendantDavid Barshay pursuant to CPLR 3211 (a) (7) which were to dismiss the first througheighth counterclaims of the defendants/counterclaim plaintiffs insofar as asserted againsthim, and substituting therefor a provision denying those branches of the cross motion; asso modified, the order is affirmed insofar [*2]as appealedand cross-appealed from, with one bill of costs payable by the additional counterclaimdefendant David Barshay to the defendants/counterclaim plaintiffs, and one bill of costspayable by the defendants/counterclaim plaintiffs to the plaintiff/counterclaim defendant.
When assessing a motion to dismiss a complaint or counterclaim pursuant to CPLR3211 (a) (7) for failure to state a cause of action, the court must afford the pleading aliberal construction, accept as true all facts as alleged in the pleading, accord the pleaderthe benefit of every possible inference, and determine only whether the facts as allegedfit within any cognizable legal theory (see Rabos v R&R Bagels & Bakery, Inc., 100 AD3d 849,851 [2012]; Mazzei vKyriacou, 98 AD3d 1088, 1089 [2012]; Yellow Book Sales & Distrib. Co., Inc. v Hillside Van Lines,Inc., 98 AD3d 663, 664 [2012]).
Here, the Supreme Court erred in granting those branches of cross motion of theadditional counterclaim defendant David Barshay which were to dismiss the first,second, third, sixth, seventh, and eighth counterclaims insofar as asserted against him bythe defendants/counterclaim plaintiffs on the ground that the defendants/counterclaimplaintiffs failed to allege that Barshay's conduct constituted an abuse of the privilege ofdoing business in the corporate form and, therefore, failed to allege the material elementsnecessary to pierce the corporate veil. Contrary to the Supreme Court's determination, thedefendants/counterclaim plaintiffs adequately pleaded allegations that Barshaydominated the plaintiff limited liability company, and engaged in acts amounting to anabuse of the privilege of doing business in that form so as to perpetrate a wrong orinjustice against them (seeGrammas v Lockwood Assoc., LLC, 95 AD3d 1073, 1075 [2012]; Medical Arts Off. Servs., Inc. vErber, 89 AD3d 698, 700 [2011]; cf. East Hampton Union Free School Dist. v Sandpebble Bldrs.,Inc., 16 NY3d 775 [2011]). Accordingly, the allegations set forth in thecounterclaims were sufficient to state a cause of action against Barshay under the theoryof piercing the corporate veil.
Moreover, the Supreme Court erred in granting those branches of Barshay's crossmotion which were to dismiss the fourth and fifth counterclaims insofar as assertedagainst him since those counterclaims, sounding in fraud and breach of fiduciary duty,respectively, were not duplicative of the legal malpractice counterclaim (see Vermont Mut. Ins. Co. vMcCabe & Mack, LLP, 105 AD3d 837 [2013]; Neuman v Frank, 82 AD3d1642 [2011]; Country ClubPartners, LLC v Goldman, 79 AD3d 1389 [2010]; Kurman v Schnapp, 73 AD3d435 [2010]).
The parties' remaining contentions are without merit. Dickerson, J.P., Hall, Cohenand Hinds-Radix, JJ., concur.