| DiMauro v United, LLC |
| 2014 NY Slip Op 07469 [122 AD3d 568] |
| November 5, 2014 |
| Appellate Division, Second Department |
[*1]
| Joseph DiMauro et al., Respondents, v United,LLC, et al., Appellants. |
Hodges Walsh & Slater, LLP, White Plains, N.Y. (Paul E. Svensson ofcounsel), for appellants.
Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, N.Y. (Thomas E.Stagg and Andrew Kazin of counsel), for respondents.
In an action, inter alia, to set aside alleged fraudulent conveyances pursuant toDebtor and Creditor Law article 10, the defendants appeal, as limited by their brief, fromstated portions of an order of the Supreme Court, Westchester County (Adler, J.), datedJanuary 8, 2013, which, among other things, denied those branches of their motion whichwere pursuant to CPLR 3211 (a) (1) and (7) to dismiss the third through eighth causes ofaction.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (7)to dismiss the eighth cause of action for failure to state a cause of action, and substitutingtherefor a provision granting that branch of the motion; as so modified, the order isaffirmed insofar as appealed from, with costs to the plaintiffs payable by thedefendants.
On a motion pursuant to CPLR 3211 (a) (7), the court should accept the facts asalleged in the complaint as true, accord plaintiffs the benefit of every possible favorableinference, and determine only whether the facts as alleged fit within any cognizable legaltheory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Neckles Bldrs., Inc. v Turner,117 AD3d 923, 924 [2014]; Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d756, 757 [2014]). Applying this standard to the allegations set forth in the thirdthrough seventh causes of action, we find that the third cause of action adequatelyalleged sufficient facts from which it may be inferred that the defendants knowinglyparticipated in a fraudulent scheme to deprive the plaintiff of his creditor rights (see Levin v Kitsis, 82 AD3d1051, 1052 [2011]); the fourth cause of action adequately alleged violations ofDebtor and Creditor Law §§ 273, 273-a, 274 and 276; and the fifth,sixth, and seventh causes of action adequately alleged successor liability claims under the"mere continuation" and "de facto merger" exceptions to the general rule that acorporation that acquires the assets of another corporation is not liable for the torts of itspredecessor (Tap Holdings,LLC v Orix Fin. Corp., 109 AD3d 167, 176 [2013]; see LadenburgThalmann & Co. v Tim's Amusements, 275 AD2d 243, 248 [2000]).Accordingly, those branches of the defendants' motion which were pursuant to CPLR3211 (a) (7) to dismiss the third through the seventh causes of action were properlydenied.
[*2] Contrary to the defendants'contention, the evidence they submitted in support of those branches of their motionwhich were pursuant to CPLR 3211 (a) (1) to dismiss the fifth, sixth, and seventh causesof action did not "utterly refute[ ] the factual allegations of the complaint, conclusivelyestablishing a defense to the claims as a matter of law" (Neckles Bldrs., Inc. vTurner, 117 AD3d at 924). Accordingly, those branches of the defendants' motionwere also properly denied.
However, the Supreme Court should have granted that branch of the defendants'motion which was pursuant to CPLR 3211 (a) (7) to dismiss the eighth cause of action,as New York does not recognize a separate cause of action to pierce the corporate veil(see Rosen v Kessler, 51AD3d 761, 761 [2008]; Hart v Jassem, 43 AD3d 997, 998 [2007]; Fiber Consultants, Inc. v FiberOptek Interconnect Corp., 15 AD3d 528, 529 [2005]).
The defendants' remaining contentions are without merit. Dickerson, J.P., Leventhal,Sgroi and LaSalle, JJ., concur.