Bullrock Concrete Corp. v Mario's Constr. Inc

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Bullrock Concrete Corp. v Mario's Constr. Inc 2012 NY Slip Op 31232(U) April 2, 2012 Sup Ct, Nassau County Docket Number: 002040/11 Judge: F. Dana Winslow 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] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIAL/IS, PART 3 NASSAU COUNTY BULLROCK CONCRETE CORP., Plaintiff, -against- MOTION DATE: 2/6/12 MOTION SEQ. NO. : INDEX NO. : 002 002040/11 MARO' S CONSTRUCTION INC., V AR HOME IMPROVEMENTS INC., V AR HOME IMPROVEMENTS, ANTHONY V AGLICA and PETRINA V AGLICA, Defendants. The following papers read on this motion (numbered 1): Notice of Motion.... .... ............................................................ Pursuant to this Part' s Rule, namely I(B), the Court automatically adjourns all motions that are submitted without opposition for one month , to determine whether or not there was either an administrative delay or excusable neglect. Such adjournment is made without prejudice to the moving party to have the merits of such an adjournent considered in the event that there is a subsequent submission. Plaintiff commenced this action by filing the Summons and Complaint on February 10, 2011. The Complaint asserts causes of action for a sum certain under the Debtor and Creditor Law , breach of contract, failure to pay for goods and services quantum meruit, unjust enrichment , and contains allegations of personal liability on the part of defendant ANTHONY V AGLICA (" A. V AGLICA" ), owner of MAIO' S CONSTRUCTION INC. (" MARIO' ), V AR HOME IMPROVEMENTS and V AR seeks HOME IMPROVEMENTS, INC. (collectively, the "V AR defendants ). Plaintiff damages in the amount of $48,418.32 against the V AR defendants and A. V AGLICA individually, to collect on a Judgment obtained against MAO' S. Plaintiff also seeks damages in the amount of $14 295 against A. V AGLICA and his wife PETRIA V AGLICA ("P. V AGLICA" ) for work done on their residence for breach of contract Prior unjust enrichment and quantum meruit. By Order, dated September 13 2011 (the " Order ), the Cour denied plaintiff's motion for a default judgment with leave to renew [* 2] 3215 on the grounds that plaintiff failed to include a copy of the judgment reflecting plaintiff's claim for $48, 418.32, or any agreements or contracts with respect to plaintiff's claim for $14 295 arising out of work done by plaintiff on the residence of A. V AGLICA and P. V AGLICA. Plaintiff now seeks to renew its motion for default judgment. As adjourned, the motion is submitted without opposition and is determined as follows. pursuant to CPLR The Prior Order determined that plaintiff presented proof of service of the sumons and complaint , as well as demonstrated satisfaction of the additional notice 3215(g)(3) and (4). Plaintiff also submitted an affirmation of plaintiff's counsel as to the failure of defendants to appear or answer. requirement set forth in CPLR With respects to the merits of its claim, in support of the prior motion , plaintiff proffered the affidavit of Alan Silverman (" Silverman ), corporate officer of plaintiff sworn to on May 12, 2011 , which set forth the facts constituting the claim , and the amount due. In support of the within motion for renewal , plaintiff proffers an additional affidavit of Silverman , sworn to on November 30 , 2011. Plaintif' s first and second causes of action to collect on the Judgment The underlying facts, according to plaintiff, are as follows: In 2005 , plaintiff commenced an action against MARIO' S seeking payment for concrete work plaintiff provided to MARIO' S. Plaintiff proffers (i) a stipulation , dated March 15, 2007, whereby MARIO' S consented to the entry of judgment in the amount of $39, 260, together with interest , costs and disbursements; and (ii) a judgment entered in the County Clerk on 418.32 April 13 , 2007 in favor of plaintiff and against MAO' S in the amount of$48, (the " Judgment" In plaintiff's first cause of action herein , plaintiff seeks to collect the Judgment against the V AR defendants alleging that after plaintiff placed MARIO' S account into collection , MAO' S ceased conducting business, closed its bank accounts, and transferred its business, accounts, and interest in equipment and vehicles to the V defendants for no consideration with the intent to hinder, delay and defraud plaintiff as a creditor of MARIO' S in violation of Debtor and Creditor Law. The Court notes that plaintiff fails to specify which sections of the Debtor and Creditor Law the V defendants and A. V AGLICA allegedly violated. 273 , 275 or 276 , the Court finds that plaintiff has not offered sufficient factual proof. A conveyance is fraudulent if it is made with actual intent to "hinder, delay or defraud either present or Even if plaintiff had properly alleged causes of action under DCL [* 3] future creditors . DCL ~276. When such intent is shown, no inquiry into the adequacy of consideration or solvency of the transferor is required. Grumman Aerospace Corp. v. Rice, 199 AD2d 365; Wall Street Assoc. v. Brodsky, 257 AD2d 526. Constrctive fraud , on the other hand , requires no proof of intent to defraud. A conveyance is deemed fraudulent if it is made without fair consideration and either (i) the transferor is insolvent at the time of the transfer or wil thereby be rendered insolvent (DCL ~273) or (ii) at the time of transfer, the transferor intends or believes that he wil become insolvent (DCL 275). The Court finds that plaintiff fails to provide a factual basis for its allegations of fraudulent transfer other than Silverman s conclusory assertions in his affidavits that he was informed by A. V AGLICA that A. V AGLICA had opened ban accounts under various business names because one of his business accounts was frozen by a creditor of MARIO' S due to his transfer of trucks and other equipment owned by MAO' S to his new businesses. This assertion is insufficient to establish that fraudulent transfers were made to the V AR defendants. The checks made out to plaintiff and issued by V HOME IMPROVEMENTS , INC. , is not sufficient proof of a fraudulent transfer between MAO' S and the V AR defendants. Plaintiff offers no support for its second cause of action which seeks to recover the Judgment against A. V AGLICA based on the doctrine of piercing the corporate veil. On the record presented, the Cour cannot impose personal liabilty upon A. V AGLICA. While the law permits the incorporation of a business for the very purose of escaping personal liabilty ... equity wil intervene to pierce the corporate veil and permit the imposition of personal liabilty in order to avoid fraud or injustice " Shkolnik v. Krutoy, Ventresca Realty Corp. v. Houlihan , 28 AD3d 537 65 AD3d 1214 (internal quotation marks and citations omitted). "A part seeking to pierce the corporate veil must establish that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiffs injury" Milennium Matter of Morris v New York Constr., LLC v. Loupolover State Dept. of Taxation & Fin., 82 NY2d 135 , 141. " (P)recedent is clear that court wil pierce the corporate veil only to prevent fraud , ilegality or to achieve equity. This is true even in situations ... where the corporation is controlled or dominated by a single shareholder" Treeline Mineola, LLC v. Berg, 21 AD3d 1028, 1029 (internal citation omitted). , 1215, quoting , 44 AD3d 1016, quoting In the case at bar , plaintiff alleges that A. V AGLICA had complete dominion and control over MAO' S and the V AR defendants, disregarded the separate identity of the V AR defendants, undercapitalized said defendants and created , operated , maintained said [* 4] defendants for the purpose of and with the intent of defrauding its customers (Complaint 29 - 36). The only evidence in support of this claim are the assertions by Silverman which may indicate that A. V AGLICA had control over the corporate defendants, but there is no evidence that he used his control over the corporate defendants to defraud his customers, or otherwise to commit an ilegality or injustice against them. In any event, to the extent that plaintiff's second cause of action only seeks to pierce the corporate veil the Court notes that NY " does not recognize a separate cause of action to pierce the Fiber Consultants, Inc. v. corporate veil." Hart v. Jassem, 43 Fiber Optek Interconnect Corp. , 15 AD3d 528, 529. AD3d 997, 998 quoting Plaintif' s causes of action for work completed at the residence of A. Vaglica Vaglica Plaintiff also alleges that between December 2, 2009 and June 10, 2010, plaintiff at the request of A. V AGLICA, provided materials and labor in the form of concrete work at the V AGLICA residence known as 3 Gerard Ave., New Hyde Park, NY 11040 (the Gerard residence ). Plaintiff claims that A. V AGLICA paid plaintiff $19 600 toward the agreed price of$33, 895 leaving an unpaid balance of$14 295. Plaintiff asserts causes of action against A. V AGLICA for breach of contract, and against A. V AGLICA and P. AGLICA for unjust enrichment and quantu meruit. The only evidence in support of these claims is a work order on plaintiff's letterhead , covering work on the Gerard residence setting forth its address as the project location and naming A. V AGLICA in the contact. Plaintiff fails to proffer a signed contract. The affidavit of Silverman attaching various checks purportedly evidencing parial payment to plaintiff are issued by V HOME IMPROVEMENTS, INC. , not A. V AGLICA, and the signatures on the checks are ilegible. The Court recognizes that a defendant who defaults is deemed to have admitted all of the factual allegations contained in the complaint and any inferences to be drawn from them. Woodson v. Mendon Leasing Corp., 100 NY2d 62 , 71; Lius Group International Endwell, LLC, v. HFS International, Inc. , 2012 WL 662177. Nonetheless , the plaintiff must allege enough facts, based upon his or her own personal observations, to pennit a determination that a viable cause of action exists. Id. Here that burden has not been met. Based upon the foregoing, it is ORDERED, that plaintiff's motion for a default judgment pursuant to CPLR ~3215 is denied without prejudice. Plaintiff shall serve a copy of this Order as follows: (i) upon all individual defendants pursuant to CPLR ~308(1) or (2), and if pursuant to [* 5] subsection (2), the affidavit of service shall fully identify the person of suitable age and discretion, with respect to his or her full name, description and relationship to the defendant; and (ii) upon all corporate defendants, pursuant to CPLR ~311(a)(I), except that service shall not be made upon corporate defendants by delivery to the Secretar of State or a registered agent. Plaintiff shall file proof of such service with any subsequent application to the Court; and it is further ORDERED, that all parties in this action , by their counsel if represented, shall appear for a conference on May 22, 2012 at 11:00 a. m. in Par 3, Supreme Court, 100 Supreme Court Drive, Mineola New York. The parties or their counsel are directed to contact the Court in the afternoon of the business day immediately preceding the conference date , or any duly authorized adjourent thereof, to confirm the appearance of the parties and the availability of the Court This constitutes the Order of the Cour. Dated: April 2 , 2012 ENTERED APR 27 2012 NAS8AU COUNTY COUtTY ClIRK' 1 OfFICI

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