Tudeme v Walters
2012 NY Slip Op 31087(U)
April 24, 2012
Sup Ct, New York County
Docket Number: 651396/10
Judge: Charles E. Ramos
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publication.
[* 1]
SUPREME COURT OF THE STATE OF NEW YORK
70UNTY
T H * . C T
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c
Index Number : 60393312007
PART
TUDEME, MACDONALD
53
VS.
WALTERS, DAVID
INDEX NO.
SEQUENCE NUMBER : 004
MOTION DATE
VACATE
I IIU IWIIIJWIII~
MOTION SEQ. NO.
pupen, rlurlluwrwu
Notice of MotlonlOrder to Show Cause
Anlworlng Amdavlts
, wow WIYU011
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rnouon tonor
-Affldavb - Exhibltn
- Exhlbita
Replying Afldavib
Upon the foregolng papem, It Is ordemd that thio motlon lo
-
uccompanyIng
,-,.-.
, "A-
n
J
,J.S.C.
Dated:
..................................................................... 0 CASE DISPOSED
DENIED
2. CHECK AS APPROPRIATE: ...........................
MOTION I : 0GRANTED
S
3. CHECK IF APPROPRIATE: ................................................
SETTLE ORDER
1. CHECK ONE:
DO NOT POST
NON-FINAL DISPOSITION
W A ID IN PART
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0OTHER
0SUBMIT ORDER
FIDUCIARY APPOINTMENT
REFERENCE
[* 2]
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW Y0RK:COMMERCIAL D I V I S I O N
-----------__--__----------------------X
MACDONALD TUDEME AND MARGUERITE TUDEME,
Index No. 651396/10
Plaintiffs,
-against-
DAVID WALTERS, MONARCH STAFFING, I N C *
AND ITECH EXPRESS, I N C . ,
Chlrlrm Edward
-OB,
J.S.C.:
Motion sequences 0 0 4 and 0 0 5 are c o n s o l i d a m
disposition.
In motion sequence 004, defendants David Walters ("Walters")
and Monarch S t a f f i n g , I n c .
("Monarch") move p u r s u a n t to CPLR
3 2 1 1 ( a ) (11, ( a ) (2), and ( a ) ( 7 ) to dismiss t h e amended complaint
(the "Amended Complaint") of Macdonald Tudeme and Marguerite
Tudeme ( t h e " P l a i n t i f f 3")
I n motion sequence 005, defendant iTechExpress, Inc.
("iTech") also moves pursuant to CPLR (a)( l ) , ( a ) ( 2 ) , and ( a ) (7)
t o dismiss the Amended Complaint.
Baokpround
This action arises from the exchange of s h a r e s of MT
Ultimate Healthcare Corporation ("MT"), a publically traded
Nevada corporation previously owned and operated by the
Plaintiffs as a nurse s t a f f i n g and home care p r o v i d e r in the N e w
York City metropolitan area. In 2005, when t h e business began to
1
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experience f i n a n c i a l difficulties, the Plaintiffs met with
Walters, a self described "investment banker, merchant banker, "
to discuss t h e sale of s h a r e s of MT. After a series of meetings
in New York, the p a r t i e s entered i n t o a s t o c k exchange agreement
dated November 4, 2005 (the "Agreement").
According to the terms of the Agreement, t h e P l a i n t i f f s
exchanged their shares of
MT for shares of a newly formed
corporation, Newco, that was a wholly owned subsidiary of MT. In
exchange, MT agreed to make a cash payment of $30,442.82 to the
P l a i n t i f f s and to assume c e r t a i n liabilities of t h e P l a i n t i f f s
( t h e "Assumed Tudeme Liabilities").' The Agreement provides that
MT " s h a l l c a u m t h e Assumed Tudeme Liabilities t o be satisfied or
refinanced, or p a i d according to their respective terms" and t h a t
MT "shall use b e s t e f f o r t s to substitute its guarantee and
collateral to [ t h e Plaintiffs' creditors] with guaranteed and
collateral obligation to such creditors and to cause t h e l i e n and
security interest relating to such obligations to be removed f r o m
[the Plaintiffs] real estate and o t h e r a s s e t s " (Shapiro
Affidavit, Exhibit 11, Section 2 [b]- [c])
.
The Agreement was
The Assumed Tuderne Liabilities include the following: (1)
$205,921.32 to Lisa Stern as
It
appears on the balance sheet of
MT dated September 30, 2005; (2) all obligations of MT on the
balance sheet and payable list, each dated September 30, 2005 not
otherwiae enumerated in S e c t i o n 3 of t h e Agreement: and a l l
obligations of MT to NIR Group and ita affiliates and the United
S t a t e s Internal Revenue Service (Shapiro Affidavit Exhibit 11,
Schedule 1 [ a ] )
.
2
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executed by the Plaintiffs a s o f f i c e r s o r representatives of MT
and by Walters as "Executive Vice President" (Shapiro A f f i d a v i t ,
Exhibit 11). The record indicates t h a t W a l t e r s was employed by
Monarch Bay C a p i t a l Group and was Executive V i c e President of
i T e c h a t t h e time t h e Agreement was executed, but is u n c l e a r as
to whether Walters signed i n his c a p a c i t y a s a r e p r w e n t a t i v e of
one of these companies or another (Chang Affirmation, Ex. E). The
record also indicates t h a t he was a ahareholder or majority
shareholder of both Monarch and i T e c h (id.).
The Agreement contains mutual r e l e a s e provisions ( t h e
"Release Provisions") a s follows:
( d ) (i) [MT] hereby f u l l y and unconditionally releases
and discharges a l l claims and c a u s e s of a c t i o n which
it, ever had, now have, or hereafter may have a g a i n s t
Macdonald and Marguerite, in each case paat, .present,
or as t h e y may exist at any time after this d a t e ,
w h e t h e r currently known o r unknown, relating to, or
a r i s i n g under, o r i n connection w i t h , the Assumed
Tudeme Liabilities.
(ii) Each of Macdonald, Marguerite, and Newco j o i n t l y
and s e v e r a l l y , h e r e b y fully and unconditionally
releases and discharges a l l claims and causes of a c t i o n
which it, ever had, now have, or hereafter may have
a g a i n s t [MTI, i n e a c h case past, present, or as they
may e x i s t at any time a f t e r t h i s date, whether
c u r r e n t l y known o r unknown, r s l a t i n g to, o r arising
under, o r i n c o n n e c t i o n with, the Assumed Tudeme
Liabilities ( S h a p i r o Affidavit Exhibit 11, Section
3 ( d ) ( i ) (ii)1
The Agreement also contains the following choice of law and
forum provision ( t h e "Forum Selection Clause") :
[This agreement]
hall be governed by and construed in
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accordance with the laws of the S t a t e of New York,
without giving effect to conflict of l a w s . Any a c t i o n ,
suit, or proceeding arising out of, based on, or in
connection with this Agreement or the transactions
contemplated h e r e b y may be b r o u g h t in t h e United States
District Court for the Southern D i s t r i c t of New York
and each party covenants and agrees n o t t o assert, by
way of motion, defense, or otherwise, in any action,
suit, or proceeding, any claim that it or he I s n o t
subject personally to the jurisdiction of such court,
that i t s or his proceeding is b r o u g h t in an
inconvenient forum, that the venue of the a c t i o n , suit,
or proceeding i a improper, or that this Agreement or
the s u b j e c t matter hereof may not be enforced i n or by
such c o u r t (Shapiro Affidavit, E x h i b i t 11, Section
7 [ w .
Finally, t h e Agreement notes t h a t "[s]imultaneously with the
execution and delivery and delivery [sic] hereof, [MT],
iTechexpress, I n c . ,
a Nevada corporation
.
. . and the
stockholders thereof are executing and delivering t h e Share and
Reorganization Agreement, dated a3 of the date hereof ( S h a p i r o
Affidavit, Exhibit 11 at l)," On November 3, 2005, MT, iTech, and
c e r t a i n iTech shareholders entered into t h e referenced agreement,
the Share Exchange and Reorganization Agreement (the "iTech
Agreement"). By way of the i T e c h Agreement, iTech acquired 88.75%
of t h e fully diluted Outstanding MT common stock.2
The procedural history for t h i s action is unfortunately
quite convoluted. On September 30, 2007, the P l a i n t i f f s initiated
t h e action by filing a summons and complaint for breach of
The parties subsequently entered into two other related
agreements t h a t are n o t a t issue for the purpose8 of this motion
(See S h a p i r o Affidavit, Exhibits 12-13).
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c o n t r a c t and f r a u d i n t h e inducement against Walters, M ~ n a r c h , ~
and Walters' business partner, Keith Moore ('\Moore")
(together,
the "Original Defendants"). Upon consent of t h e parties, the case
was assigned t o J u d i c i a l Hearing
Officer Ira Gammerman for
adjudication.
On April 2 9 , 2 0 0 8 , the Original Defendants filed a motion t o
dismiss all claims pursuant to CPLR 3211(a) (l), ( 7 ) , and ( E ) .
Following several h e a r i n g s and a reference to a referee f o r factfinding, JHO Gammerman dismissed all claima against Moore and t h e
claim f o r fraud i n the inducement a g a i n s t a l l defendants.
In February 2010, t h e Plaintiffs moved for leave to serve
and f i l e the "Amended Complaint" that would add iTech as a
d e f e n d a n t , assert new claims against Walters, and assert piercing
the corporate veil claims to h o l d Walters and i T e c h l i a b l e f o r
t h e alleged breach of contract ( t h e "Motion t o Amend"). A t a
hearing on February 2 4 , 2010, JHO Gammerman granted the
P l a i n t i f f s leave to amend but noted t h a t the Proposed Amended
Complaint had not yet been served on Monarch, Walters, and iTech
( t h e "Defendants")
.
Despite JHO Gammerman's
admonishment
regarding service, t h e P l a i n t i f f s d i d not s u b s e q u e n t l y fils t h e
Amended Complaint or serve s u c h on t h e Defendants. Nonetheless,
Walters and Monarch f i l e d a n answer t o t h e Amended Complaint on
J u n e 2 4 , 2010 and i T e c h f i l e d both a n answer to the Amended
Monarch is t h e successor i n interest of MT.
5
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Complaint on J u l y 8, 2010 and an amended answer on J u l y 28, 2010.
After i T e c h f i l e d i t s answer to t h e Amended Complaint, I t filed a
notice with the clerk's
o f f i c e indicating that it did not c o n s e n t
to a d j u d i c a t i o n J H O Gammerman. The case was in turn transferred
to t h i s Court.
Walters and Monarch f i l e d motion sequence 004 on March 28,
2011, and i T e c h filed motion sequence 005 on April 4 , 2011.
At a
hearing on June 2, 2011, t h i s C o u r t ordered the Plaintiffs to
serve and file a copy of the Amended Complaint. The Amended
Complaint, along w i t h certificates of service evidencing service
on counsel f o r the Defendants was subsequently filed on June 15,
2011. The Defendants f i l e d answers on June 23, 2011.
Di6aummion
The Defendants move this Court to dismiss the Amended
Complaint for lack of both s u b j e c t matter and personal
jurisdiction, Improper venue, and on t h e grounds that the
Plaintiffs released them from liability related to the Assumed
Tudems Liabilities by way of the Release Provisions.' Walters and
i T e c h move to dismis8 on t h e grounds t h a t t h e Plaintiffs have
failed to s t a t e a claim for piercing the corporate veil. Finally,
In making its argument, ITech incorporated by reference
the brief of Monarch and Walters. While t h e Defendants f a i l t o
cite CPLR 3211(a)(8) as grounds for dismissal, they nonetheless
argue that this Court lacks subject matter jurisdiction. As
s u b j e c t matter j u r i s d i c t i o n is n o t walvable, t h i s Court is
obliged to entertain these arguments ( F i n a n c i a l f n d u s . Regulatory
A u t h . , Inc. v Fiero, 10 N.Y.3d 12 [ 2 0 0 8 1 ) .
6
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i T e c h moves t o dismiss on the grounds that they cannot be held
liable for b r e a c h of contract because they were not a party to
the Agreement.
The Defendants f i r s t move to dismiaa on the grounds that
this C o u r t lacks subject matter and p e r s o n a l jurisdiction over
them because of the Plaintiffs' delay in s e r v i c e and filing of
the Amended C ~ r n p l a i n t .The P l a i n t i f f s argue that t h e errors in
~
s e r v i c e and filing are c o r r e c t a b l e pursuant, citing to Fry v
V i l l a g e of Tarrytown (Fry v V i l l a g e of Tarrytown, 8 9 NY2d 714
[1997]).
As the summons and Amended Complaint were properly served on
a l l Defendants and have been filed w i t h this C o u r t , the operative
question at t h i s juncture i s w h e t h e r t h e errors in filing and
service are correctable a s a m a t t e r of law. Fry was superceded by
a 2007 amendment to CPLR 2001 which provides f o r the c o r r e c t i o n
of errors r e l a t e d to filing.
The broad language of the statute
provides t h a t
" [ a J t any stage of an action, including the filing of a
summons w i t h notice, ~ummonlg and complaint or p e t i t i o n
to commence an action, the court may permit a mistake,
omission, d e f e c t or irregularity, including the failure
Among the various jurisdictional defects cited by the
Defendants, iTech argues that this Court l a c k s jurisdiction
because the Plaintiffs f a i l e d to pay an additional filing fee
pursuant to CPLR 306-a. This Court notes that the filing fee
requirement under CPLR 306-a applies only to third p a r t y actions
and is therefore inapplicable i n this c a s e .
7
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t o purchase o r acquire an index number or o t h e r mistake
in the f i l i n g process, to be corrected, upon s u c h terms
as may be j u s t , or, if a substantial right of a p a r t y
is not prejudiced, the mistake, omission, defect or
irregularity shall be disregarded, provided that any
a p p l i c a b l e fees shall be paid" (NY CPLR 2001).
In Ruffin v Lion Corp., t h e Court of Appeals h e l d that CPLR 2001
may be used to correct technical non-prejudicial defects in both
f i l i n g and service (Ruffin v L i o n Corp, 1 5 NY3d 578 [2010]). The
Court of Appeals provided the f o l l o w i n g guidance f o r determining
which infirmities in filing and service are " t e c h n i c a l " in
nature:
In deciding whether a defect in service is merely
technical, courts must be guided by t h e principle of
notice t o t h e defendant-notice t h a t m u s t be "reasonably
calculated, under all the circumstances, to apprise
interested parties of the pendency of the a c t i o n and
a f f o r d them an opportunity to present t h e i r objections"
( R u f f i n , 1 5 NY3d at 5 8 2 ) .
The record indicates t h a t t h e Amended Complaint was attached to
the Motion to Amend which was f i l e d and p r o p e r l y served on at
least one defendant, W a l t e r s . W a l t e r s i s o r was an officer of
both Monarch and iTech and is a s h a r e h o l d e r of iTach.
Additionally, Monarch and Walters appeared in the case prior to
the Motion to Amend and all three p a r t i e s appeared before JHO
Gammerman in opposition t o t h e Motion t o Amend. They were, in
f a c t , all represented by the same a t t o r n e y , Mr. Shapiro.
Furthermore, each p a r t y submitted answers t o t h e Amended
Cornplaint both a f t e r t h e Motion t o Amend was granted and after
t h e Amend Complaint was served. There can be no question that t h e
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p a r t i e s were on n o t i c e of t h i s proceeding and were afforded an
opportunity to, and did in fact, present their objections. As
B U C ~ , no
p a r t y will be prejudiced by disregarding the mistakes in
filing and service to be corrected pursuant to CPLR 2001.
Therefore, it is the f i n d i n g of t h i s Court that the technical
errors in filing and service are deemed corrected pursuant t o
CPLR 2001.
The Defendants contend that venue in this Court is improper
pursuant to the terms of the Forum Selection Clause, to t h e
exclusive jurisdiction of the United States District Court for
the Southern D i a t r i c t of New Y o r k . New York c o u r t s have
acknowledged that forum selection c l a u s e s may be e i t h e r
permissive or mandatory in nature (Boss v. American Express
Financial Advisors, I n c . , 6 NY3d 242 [2006])
Mandatory clauses
provide that contracting parties both submit to exclusive
jurisdiction in a particular forum or forums while permissive
clauses provide that contracting parties shall submit to
jurisdiction in a particular forum but do not preclude litigation
where jurisdiction is otherwise proper. In New York, mandatory
clauses a r e prima facie valid ( S t e r l i n g N a t . Bank a s Assignee of
NorVergence, Inc. v. E a s t e r n Shipping Worldwide/ Inc.
I
35 AD3d
222, 237 [lst Oept 2006]), and where parties have c o n t r a c t e d for
exclusive jurisdiction in a particular forum, it i s the policy of
the Courts to enforce these provisions (id.). Where c o n t r a c t i n g
9
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p a r t i e s have agreed to a permissive forum selection c l a u s e , the
general rule is t h a t "[wlhen only jurisdiction is specified t h e
clause will generally n o t be enforced without aome f u r t h e r
language indicating the parties' i n t e n t to make jurlsdlction
exclusive" ( F e a r
&
F e a r , I n c . v N. I. I. Brokerage, LLC, 50 AD3d
185, 187 [2008]) (internal quotations omitted).
Here, the parties' use of the permissive language "may" in
the Forum Selection Clause suggests that the clause is permissive
rather than mandatory. iTech cites to F e a r
&
Fear f o r t h e
proposition t h a t " [ a ] provision stating t h a t a n action 'may'
be
b r o u g h t in a jurisdiction means that the action must be brought
in that jurisdiction" (iTech Mem of Law at 10). iTech's
reliance
on Fear is misguided. The forum selection clause at issue in Fear
provided that suits arising from the contract "may be litigated
in any federal or s t a t e c o u r t of competent j u r i s d i c t i o n located
in the Borough of Manhattan" ( F e a r , 50 AD3d at 187). The
Appellate Division h e l d that " a '
my'
was used to r e f e r
t Q
the
choice of a state or federal forum and the clause was mandatory
to the e x t e n t that the p a r t i e s were bound to bring s u i t in one of
t h o s e two foruma. Here, the Forum Selection C l a u s e is
distinguishable in that it does not offer such a choice. It
merely provides t h a t the parties "may" bring s u i t in t h e U n i t e d
S t a t e s District Court of t h e S o u t h e r n District of New Y o r k and
that each party consents to jurisdiction in that forum. There is
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no further language that indicatea the parties intended the
District Court to be the exclusive forum for the litigation of
disputes. It ia, therefore, the concluaion of this Court t h a t the
-
Forum Selection Clause c o n f e r s jurisdiction in the designated
forum b u t does not deny the P l a i n t i f f s their choice of forum in
this C o u r t .
B-
Dismissal under CPLR 321.1 ( a ) (1) is warranted "only if the
documentary evidence submitted conclusively establishes a d e f e n s e
to the asserted claims as a matter of law" (511 W. 232nd Owners
Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]1 . The
Defendants contend that the mutual release provisions In the
Agreement release them from liability related to the Assumed
Tudeme Liabilities and bar t h i s litigation. "In the absence of
f r a u d , d u r e s s , illegality or m i s t a k e , a g e n e r a l release bars an
action on any cause of a c t i o n ariBing prior to its
execution"(Hack v U n i t e d Capital Corp, 2 4 7 AD2d 300, 301
[1998])[emphasis added]). The Assumed Tudeme Liabilities arose
-
from the Agreement, not prior to it. Therefore, t h e release
provision8 in the Agreement do not release the Defendants from
liability.
c-
The Plaintiff8 move this C o u r t to pierce the corporate v e i l s
of both Monarch and iTech and hold Walters personally liable for
11
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the alleged breach of contract. Walters moves ta dismiss t h e
Plaintiffs'
claim for piercing the corporate v e i l p u r s u a n t to
CPLR 3211(a)(7) on the grounds that the P l a i n t i f f s have
not
alleged facts sufficient to support the claim.
The P l a i n t i f f s alao present a threshold issue by a s s e r t i n g
t h a t this claim should not be dismissed pursuant to the doctrine
of "law of the caae" because JHO Gammerman g r a n t e d their Motion
t o Amend d e s p i t e Walters making the ''same
1
arguments" in
opposition. A t the February 2 4 , 2010 h e a r i n g where JHO Gammerman
granted t h e Motion to Amend, he stated that w i t h respect to the
claim for piercing the c o r p o r a t e veil, "I've
indicated to counsel
in an off-the-record discussion that if this is going to be t r i e d
by a j u r y , I'll
resolve that issue before the matter is submitted
to the j u r y . If i t ' s n o t going t o be t r i e d by a j u r y , I ' l l
resolve it within the framework of the trial" ( S h a p i r o
Affirmation, Ex 6 at 2). These comments indicate t h a t JHO
Gammerman did n o t m a k e a determination on this matter, but r a t h e r
preserved t h e issue f o r a later time. T h e r e f o r e , it is t h e
determination of this C o u r t t h a t the law of the case doctrine
does not apply to this issue.
When determining whether to grant a motion pursuant to CPLR
3211(a)(7), the C o u r t must determine whether the pleadings atate
a cause of a c t i o n . T h e motion must be denied if from t h e
pleadings' four corners "factual allegations are discerned which
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taken t o g e t h e r manifest a n y cause of action cognizable at law."
(511 W. 2 3 P d Owners C o r p . v J e n n i f e r Realty Co., 98 NY2d 1 4 4 ,
152 [2002], quoting Guggenhelmer v Ginzburg, 43 NY2d 268, 275
[1977]. The Court m u s t a f f o r d t h e pleadings a liberal
construction, accept the allegations of the complaint and any
submissions in opposition to the motion as true, and a f f o r d the
plaintiffs the benefit of every possible favorable inference
(id.).
Courts have the a u t h o r i t y to look beyond the corporate form
"to prevent fraud or to achieve e q u i t y " (Port Chester Elec.
C o n s t . Co. v. A t l a s , 4 0 NY2d 652, 656 119761). "In order for a
p l a i n t i f f to state a viable claim against a shareholder of a
corporation in his or her individual c a p a c i t y f o r actions
purportedly t a k e n on behalf of the corporation, plaintiff must
allege facts that, if proved, indicate that the shareholder
exercised complete domination and c o n t r o l over t h e corporation
and 'abused the privilege of doing business in t h e corporate form
to perpetrate a wrong
OF
injustice'"
( E a s t Hampton Unlon Free
School D i s t . v Sandpebble B l d r s . , Inc., 16 NY3d 775,
777 [20111).
To support its c l a i m for piercing t h e c o r p o r a t e veil, the
P l a i n t i f f s assert that "Walters was and is the alter ego" of both
Monarch and iTech, both companies were undercapitalized, n e i t h e r
Monarch n o r iTech ever had a legitimate buainess purpose, and
n e i t h e r business ever made a p r o f i t (Amended Complaint at
13
. - -. ..
. . .. .
..
¶
30-
[* 15]
39), but fail to plead f a c t s to support these c o n c l u s o r y
allegations. The claim is, therefore, Insufficient t o survive a
motion to dismiss (Godfrey v. Spano, 13 N.Y.3d 358, 3 7 3
[2009])["Although on a motion to dismiss plaintiffs'
allegations
are presumed t o be t r u e and accorded every favorable inference,
conclusory allegations-claims consisting of bare legal
conclusions w i t h no f a c t u a l specificity-are insufficient t o
s u r v i v e a motion to dismiss."]).
F i n a l l y , iTech moves to dismiss the claims against them on
t h e grounds that it was n o t a p a r t y to the Agreement and
therefore cannot be h e l d liable for the alleged breach of
c o n t r a c t . Plaintiffs again assert that the law of the case
doctrine bars dismissal of the claims against iTech because " [ i l n
opposing plaintiffs' motion to amend their complaint, iTech's
counsel made the same arguments, but plaintiffs' application was
granted" and "[nlothing has changed since that t h e " (Plaintiffs'
Memorandum of Law at 6). While JHO Gammerman did grant t h e Motion
to Amend, permitting t h e P l a i n t i f f s '
to plead claims againat
i T e c h , the record does not i n d i c a t e that he made a determination
on the merits of the p l e a d i n g s . Therefore, the law of t h e case
does n o t a p p l y .
The Plaintiffs assert t h a t iTech is liable for Monarch'B
debts because the Share and Reorganization Agreement caused i T a c h
and Monarch to become "essentially t h e same" (Plaintiffa
14
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memorandum of law at 7), but f a i l e d to make a claim for successor
liability o r p l e a d f a c t s beyond a showing t h a t iTech is a major
shareholder of Monarch. The P l a i n t i f f s claims against i T e c h are
therefore insufficient to preclude dismissal.
Accordingly, it is
ORDERED that t h e defendants David Walter8 and Monarch
Staffing, Inc. motion to dismiss (motion s e q u e n c e 004) is granted
in part and t h e third cause of action (piercing t h e c o r p o r a t e
v e i l ) of t h e complaint is dismissed; and it is f u r t h e r
ORDERED t h a t the defendant iTechExpress, Inc.‘s motion to
dismiss (motion sequence 005) is granted in p a r t and t h e second
(breach of contract) and t h i r d causes of a c t i o n (piercing the
c o r p o r a t e veil) of the complaint are diermissed.
Dated; April 19, 2012
ENTER:
671
I
CHARL~S RAMOS
E.
15
