Fiber Consultants, Inc. v Fiber Optek Interconnect Corp.

Fiber Consultants, Inc. v Fiber Optek Interconnect Corp. 2005 NY Slip Op 01312 [15 AD3d 528] February 22, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 20, 2005

Fiber Consultants, Inc., Respondent,
v
Fiber Optek Interconnect Corp. et al., Appellants.

—[*1]

In an action, inter alia, to recover damages for breach of contract and to compel payment of certain commissions allegedly due and owing, the defendants appeal, as limited by their separate briefs, from so much of an order and interlocutory judgment (one paper) of the Supreme Court, Dutchess County (Brands, J.), entered December 19, 2003, as denied those branches of their motion pursuant to CPLR 3211 (a) (7) which were to dismiss the second, third, fourth, fifth, seventh, and eighth causes of action, granted that branch of the plaintiff's cross motion which was for summary judgment on the third cause of action insofar as asserted against the individual defendants, and is in favor of the plaintiff in the principal sum of $62,500 and against each of the individual defendants.

Ordered that the appeal by the defendant Frank P. Zarzeka, Jr., is deemed withdrawn, without costs or disbursements, pursuant to letter dated October 27, 2004; and it is further,

Ordered that the appeal by the defendant Fiber Optek Interconnect Corp., from so much of the order and interlocutory judgment as granted the cross motion and is in favor of the [*2]plaintiff and against the individual defendants is dismissed, as it is not aggrieved by those portions of the order and interlocutory judgment (see CPLR 5511); and it is further,

Ordered that the order and interlocutory judgment is modified, on the law, by deleting the provision thereof denying that branch of the motion which was to dismiss the fifth cause of action insofar as asserted against the defendants Fiber Optek Interconnect Corp. and Michael S. Pascazi and substituting therefor a provision granting that branch of the motion, with leave to replead the allegations in a second amended complaint if the plaintiff be so advised; as so modified, the order and interlocutory judgment is affirmed, with one bill of costs to the plaintiff payable by the defendants Fiber Optek Interconnect Corp. and Michael S. Pascazi; and it is further,

Ordered that the second amended complaint, if any, shall be served and filed within 30 days after service upon the plaintiff of a copy of this decision and order.

The appellants Fiber Optek Interconnect Corp. (hereinafter Fiber Optek) and Michael S. Pascazi correctly contend that New York does not recognize a separate cause of action to pierce the corporate veil. Accordingly, those branches of the defendant's motion which were to dismiss the plaintiff's fifth cause of action insofar as asserted against Fiber Optek and Pascazi should have been granted (see Old Republic Natl. Tit. Ins. Co. v Moskowitz, 297 AD2d 724, 725 [2002]; see also Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141 [1993]). However, the allegations contained in the fifth cause of action are factual assertions and as such may properly be pleaded in a complaint. Accordingly, we have granted leave to serve and file a second amended complaint asserting such allegations, if the plaintiff be so advised.

The remaining contentions of the Fiber Optek and Pascazi either are without merit or improperly raised for the first time on appeal. Florio, J.P., H. Miller, S. Miller and Spolzino, JJ., concur.