Doe v Ishaq

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Doe v Ishaq 2011 NY Slip Op 33543(U) December 30, 2011 Supreme Court, Nassau County Docket Number: 024605/09 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] ,..SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: PART 17 JOHN DOE, A MINOR BY HIS MOTHER AND LEGAL GUARIAN, JANE DOE AND JOSEPH DOE INDIVIDUALLY, Plaintiffs - against - DECISION AND ORDER Index No: 024605/09 SAMI ISHAQ, HILDA ISHAQ and CINDY DELI INC., 400 PARK BLVD. INC., PAR MASS APE QUA DELI, PAR BLVD. DELI FFI CATERIG INC. , MASSAPEQUA PARK DELI , INC., and MASSAPEQUA PARK BLVD. DELI, INC. , and ABC CORPORATIONS 1- 10, Motion Sequence No: 004 & 005 Original Retur Date: 01- 18- Defendants. --------------- ----------------------------- --------- ----x PRESENT: HON. JOEL K. AS ARCH, Justice of the Supreme Court. The following named papers numbered 1 to 5 were submitted on this Notice of Motion and Notice of Cross-Motion on Februar 4 , 2011: Papers numbered Notice of Motion and Affrmation in Support - (Seq. 004) Affrmation in Opposition Reply Affrmation Amended Notice of Cross- Motion - (Seq. 005) Affirmation in Support Reply Affirmation The motion by the defendant Hilda Ishaq for an Order pursuant to CPLR 2221 granting her reargument of ths Cour' s Decision and Order dated November 29 2010 and upon reargument, an [* 2] Order pursuant to CPLR 3025 and 3211 denying plaintiffs leave to amend their interpose the sixth , complaint to seventh and eighth causes of action (sequence no. 4); and the cross-motion by the plaintiffs for an Order pursuant to CPLR 2221 (d), (e) granting them reargument and/or renewal of this Cour' s Decision and Order dated November 29 2010 (sequence no. 5) and upon reargument and/or renewal granting them a default judgment against the " Blvd. Inc. , Park Massapequa Deli , Park Blvd. Deli defendant corporations " 400 Park , FFI Caterig, Inc. , Massapequa Park Deli , Inc. Massapequa Park Blvd. Deli , Inc. and ABC Corporations 1- , are decided as follows: While this Cour correctly found that leave to amend the plaintiff's unecessar in view of the fact that defendants have not answered complaint was , the defendant Hilda Ishaq and Cindy Deli Inc. , d//a Massapequa Park Deli , Inc. , as was their right , continued to attempt to defeat the proposed amendment by seeking the dismissal of all of the causes of action in the proposed amended complaint pursuant to CPLR 3211. 35 (151 Dept 1998), citing Sage Realty Corp. v Proskauer Rose. LLP , 251 AD2d Shalom v Zuckerbrot Realty Corp. v Coldwell Baner Commercial Group. Inc , 138 Misc 2d 799 801 (Supreme Cour Queens County 1998). In their sixth cause of action, the plaintiffs allege that Hilda Ishaq " disregarded corporate formalities and used said entities as she deemed appropriate without regard to corporate puroses and that as the " alter ego " of the defendants , she is personally liable to the plaintiffs. In their seventh cause of action , the plaintiffs allege that Hilda Ishaq " exercised complete dominion and control over" the defendants in order to commit a fraud on the plaintiff. They allege that the corporate defendants ignored all corporate formalities in their formation and operation specifically with respect to the compensation of their employees and their maintenance of records and that Hilda Ishaq transferred items of value from the corporate defendants to herself and [* 3] otherwse used said entities without regard to corprat fonnalties as she considerd defendants ' assets her personal line of credit. In their eighth cause of action pennitted Sam Ishaq to engage , the plaitiffs aIlege that the defendants engaged in and/or in extreme and outrageous sexuaI pennttg" Sam Ishaq to engage in such conduct and or " defendants intened to COrporate miscndnct. They by givig him the couse or disregarded the substatiaI probability aIlege tht " opportty" to do so tht such actions severe emotional distress to the infant plaintiff wooId caus Those defendants have established that the seekig to pierce plaitis six and seventh causs of action the vis-v- vis Hilda corprate veil to pierce the COrporate veil do not constute Ishaq faied to st a separate causes of action. Har v Jassem , Dept 2007). In any event, " (iJt is well setted that ' heavy burden of showig that clai. Plaitiff attmpts 43 AD3d 997 (tJhose seekig to piere a corprate veil. . . bear a the corporaon was dominate as to the tranaction attached and such domiation was the consequences.' " INS inent of ITaad or otherwse resuted in wrongf or Sherdan Broadcali COIi'. v SmaIl 19 AD3d 33 I Holdi.. v MI Securities. Com , 92 NY2d 335 generaly ' requis a showing tht: in respct to the tranaction wrng agains the plaitiff 0) the owner exerised attked; and (2) tht such which resoIted in plaitiffs , 332 0" inequitable Dept 2005), quotig 339 (2998). "Piercin complete tht the COrporate veil domination of the corpration domiation wa us to commt a ITaad or injur. Sherida Broadcang Smal supra at p. 332 82 NY2d I3 5 , 141 Corvo , quoting Mattr of Moms v New York State Dept. of T axation & Finance (993). F urennore evidence of domination aIone did not sufce without an additiona showing that it led to inequity, ITud or maIfeasance. '" Sherida Broadcastig Com. ," '" [* 4] v Small supra, at p. 332 , quoting TNS HoldinlZs v MKI Securities Corp supra, at p. 339. A plaintiff seeking to pierce the corporate veil must allege paricularized statements detailing fraud or other corporate misconduct , , (which) would warant piercing the corporate veil." Sheridan Broadcasting Corp. v Small supra, at p. 332 , citing Sheinberg v 177 E. 77 248 AD2d 176 177 (151 Dept 1998), lv dism. 92 NY2d 844 (1998). '" (A)n inference of abuse does not arise. . . where a corporation was formed for legal puroses or is engaged in legitimate business. Holdings v MKI Securities Corp supra at p. 339- 340 , quoting TNS TNS Holdings v MKI Securities Corp supra, at p. 339- 340. A plaintiff must allege facts that would establish that the individual defendant, through his domination " abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against that par such that a court in equity wil intervene (citations omitted). Matter of Morris v New York State Dept. of Taxation & Fin supra at p. 142. The plaintiffs have not alleged facts which would establish that Hilda Ishaq, though her domination of Cindy Deli abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the (infant plaintiff) such that a cour in equity (citations omitted). (should) intervene Matter of Morris v New York State Dept. of Taxation & Finance supra at p. 142. The allegations necessar to impose liability for the Deli on the individual defendant Hilda Ishaq are absent. Reargument is granted and upon reargument , the plaintiff is denied leave to amend her complaint to interpose the sixth and seventh causes of action. To suffciently plead an intentional tort that wil neutralize the Workers ' Compensation Law exclusivity, there must be alleged an intentional or deliberate act by the employer directed at causing har to the paricular employee. 497 500- 501 (151 Dept 1993) Acevedo v Consolidated Edison of New York. Inc , 189 AD2d Iv dism , 82 NY2d 748 (1993), citing Mylroie v GAF C01J , 81 AD2d [* 5] 994 (3 Dept 1981 ) aff'd , 55 NY2d 893 (1982). "' In order to constitute an intentional tort conduct must be engaged in with the desire to bring about the consequences of the act. A mere knowledge and appreciation of a risk is not the same as the intent to cause intended if the act is done with the , the injur. '" A result is purose of accomplishing such a result or with knowledge that to a substantial certainty such a result wil ensue. Acevedo v Consolidated Edison of New York Inc. , supra, at p. 501 , citing Finch v Swingly, 42 AD2d 1035 (4th Dept 1974). The eighth cause of action sounding in intentional inficting of emotional distress has been adequately pled against the individual defendant Hilda Ishaq. The plaitiffs Ishaq "permitted" and "gave (SamiJ the opportunity, knew of' and " was aware of' Sami' s behavior. have alleged that Hilda " to sexually abuse the plaintiff, and that she See Randall v Tod-Nik Audiology. Inc 38 (1st Dept 2000) (possible grounds to impute employee , 270 AD2d s conduct to corporation in view of his high- level position; " The exclusivity provisions of the Workers ' Compesation Law does not apply to bar an action by an employee to recover for an intentional tort , committed , instigated authorized by the employee Elson v Consolidated Edison Co. of New York. Inc. s employer); , 226 AD2d 288 (1 st Dept 1996) (intentional tort by defendants adequately pled); Spoon v American Agricultualist. Inc. , 120 AD2d 857 (3Td Dept 1986). (issue offact as to whether employer was aware of employee s sexual harassment of the plaintiff and yet failed to take corrective action; evidence that employer was fuly sitution); but awae of employee s offensive behavior yet expressly refused to Orzechowsk v Wamer-Labert tht defendats "consciously, willfuly, created insufficient to survive reedy the Co. , 92 AD2d 110 (2"' Dept. I 993) (aUegations knowigly and intentionaIly ignored the hazds " they sumar judgment). As for the refusal to enter a default against the defendant Corporations 400 Park Blvd. Inc. [* 6] Park Massapequa Deli , Park Blvd. Deli , FFI Catering, Inc. , Massapequa Park Deli , Inc. , Massapequa Park Blvd. Deli , Inc. and ABC Corporations 1- 10 (with the exception of Cindy Deli. ), in seeking a default judgment , the plaintiffs have not submitted evidence of verification of the complaint by a par or an affidavit attesting to the facts (CPLR 3215 (f)) nor have they submitted proof establishing its compliance with CPLR 3215 (4) (i) in support of their motion. While the plaintiffs maintain that this Cour overlooked evidence establish entitlement to relief. thereof, that evidence was only submitted in reply, which fails to See Rubens v Find , 23 AD3d 636 (2 Co. v PellelZrini , 258 AD2d 638 (2 Dept 2005); Matter ofTIG Ins. Dept 1999). Reargument accordingly does not lie. Nor does this Cour find renewal lies. The documents are not new nor has a plausible excuse for the failure to submit them in the first place been offered. Accordingly, after due deliberation , it is ORDERED , that the motion by the defendant Hilda Ishaq for an Order pursuant to CPLR 2221 granting her rearguent of this Cour' s Decision and Order dated November 29 2010 , and upon rearguent , an Order pursuant to CPLR 3025 and 3211 denying plaintiffs leave to amend their complaint to interpose the sixth , seventh and eighth causes of action is rearguent , the plaintiffs are denied granted and upon leave to amend their complaint with respect to the proposed sixth and seventh causes of action; and it is fuher ORDERED , that the cross-motion by the plaintiffs for an Order pursuant to CPLR 2221 (d), (e) granting them reargument and/or renewal of this Cour' s Decision and Order dated November 29, 2010 , and upon rearguent and/or renewal granting them a default judgment against defendant corporations " the 400 Park Blvd. Inc. , Park Massapequa Deli , Park Blvd. Deli , FFI Catering, Inc. , Massapequa Park Deli , Inc. , Massapequa Park Blvd. Deli , Inc. and ABC Corporations 1- 10 is [* 7] denied; and it is fuer ORDERED , that a compliance conference shall be held before the undersigned at the courhouse located at 100 Supreme Cour Drive , Mineola, New York 11501 on February 6, 2012 at 9:30 a. m.. Counsel for all paries shall attend. The foregoing constitutes the Decision and Order of the Cour. Dated: Mineola, New York December 30 , 2011 Copies mailed to: Herzfeld & Rubin , P. Attorneys for Plaintiffs Fields & Levy, LLP Attorneys for Defendants Hilda Ishaq and Cindy Deli , Inc. Sandra M. Ishaq, Esq. Attorney for Defendant Sami Ishaq ENTERED JAN 04 2012 NASSAU Uui..l ' COUNTY CLERK' S OHICi.

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