| Matter of Agai v Diontech Consulting, Inc. |
| 2016 NY Slip Op 02646 [138 AD3d 736] |
| April 6, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Jacob Agai et al.,Respondents, v Diontech Consulting, Inc., et al., Respondents, and StylianosAntoniou et al., Appellants. |
Silverberg, P.C., Central Islip, NY, for respondents-appellants.
Kasowitz, Benson, Torres & Friedman LLP, New York, NY (Michael P. Bowenof counsel), for petitioners-respondents.
In a proceeding pursuant to CPLR article 52, inter alia, to enforce two judgments,Stylianos Antoniou and Sokrates Antoniou appeal, as limited by their brief, from somuch of an order of the Supreme Court, Richmond County (Dollard, J.), entered August29, 2013, as granted that branch of the petitioners' motion which was for summaryjudgment on so much of the petition as sought to enforce the judgments against thempersonally by piercing the corporate veil of Diontech Consulting, Inc., and denied theircross motion for summary judgment dismissing the petition insofar as asserted againstthem.
Ordered that the order is affirmed insofar as appealed from, with costs.
In underlying actions entitled Agai v Diontech Consulting, Inc., andDiontech Consulting, Inc., v 291 Avenue P, LLC, which were commenced in theSupreme Court, Richmond County, under index Nos. 102968/07 and 100103/10,respectively, the petitioners obtained two judgments against Diontech Consulting, Inc.(hereinafter Diontech). The petitioners commenced this proceeding pursuant to CPLRarticle 52, inter alia, to enforce the judgments personally against two of Diontech'salleged principals, Stylianos Antoniou and Sokrates Antoniou (hereinafter together theappellants), by piercing the corporate veil of Diontech. The petitioners moved, amongother things, for summary judgment on so much of the petition as sought to enforce thejudgments against the appellants personally by piercing the corporate veil of Diontech,and the appellants cross-moved for summary judgment dismissing the petition insofar asasserted against them. The Supreme Court granted that branch of the petitioners' motionand denied the cross motion.
Equity will intervene to pierce the corporate veil and permit the imposition ofindividual liability on owners for the obligations of their corporations in order to avoidfraud or injustice (see Matter of Morris v New York State Dept. of Taxation &Fin., 82 NY2d 135, 141 [1993]). A party seeking to pierce the corporate veil mustestablish that (1) the owners exercised complete domination of the corporation withrespect to the transaction at issue, and (2) such domination was used to commit a fraud orwrong against the party seeking to pierce the corporate veil which resulted in the injuryto that party (see id. at 141; Campone v Pisciotta Servs., Inc., 87 AD3d 1104, 1105[2011]). [*2]The decision whether to pierce the corporateveil in a given instance will depend on the circumstances of the case (see Weinstein vWillow Lake Corp., 262 AD2d 634, 635 [1999]).
Here, the petitioners demonstrated their prima facie entitlement to judgment as amatter of law on so much of the petition as sought to pierce Diontech's corporate veil bysubmitting evidence showing, inter alia, that the appellants dominated Diontech, thatDiontech did not adhere to any corporate formalities such as holding regular meetingsand maintaining corporate records and minutes, that the appellants used corporate fundsfor personal purposes, and that the appellants stripped Diontech of assets as they wounddown the business, leaving it without sufficient funds to pay its creditors, including thepetitioners (see VentrescaRealty Corp. v Houlihan, 41 AD3d 707 [2007]; Godwin Realty Assoc. vCATV Enters., 275 AD2d 269, 270 [2000]; Austin Powder Co. vMcCullough, 216 AD2d 825, 827-828 [1995]). In opposition, the appellants failed toraise a triable issue of fact. The appellants' self-serving affidavits, which contradictedtheir prior deposition testimony, were insufficient to defeat summary judgment (seePerez v Bronx Park S. Assoc., 285 AD2d 402, 404 [2001]; Phillips v BronxLebanon Hosp., 268 AD2d 318 [2000]). As to their cross motion, the appellantsfailed to demonstrate their prima facie entitlement to judgment as a matter of law.
Accordingly, the Supreme Court correctly granted that branch of the petitioners'motion which was for summary judgment on so much of the petition as sought to enforcethe judgments against the appellants personally by piercing the corporate veil ofDiontech and denied the appellants' cross motion for summary judgment dismissing thepetition insofar as asserted against them. Mastro, J.P., Hall, Miller and LaSalle, JJ.,concur.