Casa Di Roma Furniture, Inc. v Sovereign Bank

[*1] Casa Di Roma Furniture, Inc. v Sovereign Bank 2009 NY Slip Op 52241(U) [25 Misc 3d 1222(A)] Decided on November 6, 2009 Supreme Court, Kings County Demarest, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 6, 2009
Supreme Court, Kings County

Casa Di Roma Furniture, Inc., Plaintiff,

against

Sovereign Bank, New Color Brush, Inc., Nu Color, Inc., John Cambio, ABF Environmental, Inc., and Bensonhurst Construction Corp., Defendants.



40537/07



Attorney for Plaintiff

Corey Kaye, Esq.

Kaye & Lechner

220 Mineola Blvd. - Ste. 10

Mineola, NY 11501-2533

Attorney for Defendant Sovereign Bank

Deborah Bryant, Esq.

Cullen & Dykman, LLP

44 Wall Street - 17th Floor

New York, NY 10005-2401

Attorney for Defendants New Color Brush, Inc., Nu Color, Inc., and John Cambio

Elliott Martin, Esq.

16 Court Street - Ste. 2304

Brooklyn, NY 11241-1023

Attorney for Defendant ABF Environmental, Inc.

Cindy Varrecchia, Esq. Ahmuty, Demers & McManus, LLP

123 William Street

New York, NY 10038-3804

Attorney for Defendant Bensonhurst Construction Corp.

Greg Saracino, Esq.

Milker Makris Plousadis & Seiden

3 Barker Avenue - 6th Floor

White Plains, NY 10601

Carolyn E. Demarest, J.

Defendant John Cambio moves to dismiss the claims against him as an individual pursuant to CPLR 3211(a)(7) and (a)(1), and CPLR 3212. For the reasons set forth below, the motion is denied.

Background

Plaintiff Casa Di Roma Furniture, Inc. ("Casa") owns and operates a retail furniture store located at 8514 18th Avenue, Brooklyn, New York ("the Premises"). Pursuant to a written

lease agreement with the owner of the Premises, defendant Sovereign Bank ("Sovereign"), Casa occupies the basement, first floor store front, and entire second floor of the Premises. Casa has occupied the Premises since July 1, 1985.

On March 21, 2006, Casa allegedly informed Sovereign that water was leaking from the roof, causing a crack in the first floor ceiling. On December 29, 2006, Sovereign contracted defendant New Color Brush, Inc. ("New Color") for roof-related work at the Premises. Plaintiff alleges in the complaint that the roof-related work began on August 16, 2007 and was completed on October 5, 2007. New Color allegedly acted as general contractor, and subcontracted the roof-related work out to Bensonhurst Contracting, Inc. ("Bensonhurst"). Defendant John Cambio ("Cambio") is the president of New Color. According to plaintiff, Cambio worked closely with representatives from Sovereign and Bensonhurst to coordinate the work at the Premises.

Plaintiff alleges that it sustained monetary damages, loss of business income, loss of beneficial use and enjoyment, and damages to reputation because of asbestos contamination allegedly caused by defendants' negligent construction work.

The amended verified complaint contains twelve causes of action. While the allegations in the complaint are broad, the fourth and eleventh causes of action are directed at Cambio, and closely track the language and allegations contained in the causes of action directed at the other co-defendants. The two claims against Cambio sound in "common law negligence and private nuisance." (Affirmation in opposition ¶ 20).

Discussion

Pursuant to CPLR 3211(a)(7), on a motion to dismiss for failure to state a cause of action, the complaint must be liberally construed in the light most favorable to the plaintiff and all allegations must be accepted as true. (Leon v Martinez, 84 NY2d 83, 87 [1994]). "Initially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Thus, "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in [*2]determining a motion to dismiss." (EBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005]).

Here, Cambio argues that plaintiff fails to state a claim against him because, as principal of New Color, he cannot be liable for the acts of the corporate entity, and plaintiff does not plead specific facts to pierce the corporate veil. "Generally, piercing the corporate veil requires a showing that the individual defendants (1) exercised complete dominion and control over the corporation, and (2) used such dominion and control to commit a fraud or wrong against the plaintiff which resulted in injury." (Damianos Realty Group, LLC v Fracchia, 35 AD3d 344, 344 [2d Dept 2006]).

Indeed, plaintiff's complaint does not allege lack of corporate formalities, commingling of funds, or self-dealing against Cambio. Plaintiff does not specifically plead that Cambio exercised complete domination of the corporation, nor does it allege that such domination was used to commit a fraud or wrong against the plaintiff. However, plaintiff's reliance solely on piercing the corporate veil theory is misplaced as there is no claim of privity of contract between plaintiff and Cambio; plaintiff's claims against Cambio are entirely tortious. Although a corporate officer may not be held liable for the negligence of a corporation simply because of his relationship to it (Aguirre v Paul, 54 AD3d 302, 304 [2d Dept 2008]), "if a director or officer commits, or participates in the commission of a tort, whether or not it is by or for the corporation, he is liable to third persons injured thereby." (Greenway Plaza Office Park-1, LLC v Metro Construction Services, Inc., 4 AD3d 328, 329 [2d Dept 2004]; see also Aguirre, 54 AD3d at 304; see also Felder v R and K Realty, 295 AD2d 560, 561 [2d Dept 2002]).

In opposition to the motion, plaintiff primarily argues that more discovery is necessary to ascertain defendant Cambio's personal involvement in the construction work. However, in the complaint, Cambio is alleged to have held himself out to be capable of performing the work at the Premises, including the repair or replacement of the roof. It is also alleged that Cambio had notice of asbestos in the roof, was responsible for said abatement, and had a duty not to contaminate the Premises with asbestos. Plaintiff also pleads that Cambio knew plaintiff had valuable material in the Premises, and foresaw that plaintiff would suffer harm from asbestos contamination if the roof work was not done properly. It is further alleged that Cambio negligently, carelessly, and/or recklessly failed to take action to abate the asbestos, even though he received notice of the asbestos contamination. Furthermore, the letters exchanged between Casa Di Roma and Sovereign, which are attached to Cambio's supporting affidavit, suggest that Cambio conducted onsite inspections of the Premises. These allegations sufficiently plead a cause of action for negligence against Cambio. (See generally Donahue v Copiague Union Free School District, 64 AD2d 29, 32 [2d Dept 1978]).

Additionally, under the eleventh cause of action, plaintiff alleges that Cambio negligently failed to protect the Premises from asbestos contamination, and notwithstanding his knowledge of asbestos, caused, permitted, and/or allowed asbestos to be released into the Premises. Further, plaintiff claims that Cambio intentionally, unreasonably, and substantially interfered with plaintiff's rightful use and enjoyment of the Premises, thereby pleading a nuisance claim. (See generally Copart Industries, Inc. v Consolidated Edison Co., 41 NY2d 564, 569 [1977]).

Taking the allegations in the complaint as true, to the extent that plaintiff argues that Cambio was personally involved in the construction that contributed to plaintiff's property damage, plaintiff states a claim against Cambio that must survive this motion to dismiss. [*3](Bellinzoni v Seland, 128 AD2d 580, 581 [2d Dept 1987] [finding that defendant principal's motion to dismiss should have been denied where principal personally supervised and participated in construction work which contributed to plaintiff's injury]; Kopec v Hempstead Gardens, Inc., 264 AD2d 714, 716 [2d Dept 1999] [upholding lower court's denial of principal's motion to dismiss negligence, nuisance, and trespass claims where principal was personally involved in excavation work]).

Although, Cambio claims in his affidavit that: he was acting through and on behalf of a corporation; all work, labor, and services provided at the job site were through a corporate entity, at no time provided on an individual basis; and all money exchanged was through corporate entities, these arguments are not dispositive of defendant's motion and merely give rise to issues of fact that are best resolved after further discovery. Nor is plaintiff's reliance on Peguero v 601 Realty Corp. (58 AD3d 556 [1st Dept 2009]) availing. In that case, the Appellate Court distinguished between a corporate officer's liability for negligence based upon misfeasance or malfeasance, as opposed to nonfeasance. (Id. at 559). However, the complaint alleges acts of both misfeasance and nonfeasance against Cambio, thus raising factual issues. Defendant's motion pursuant to CPLR 3211(a)(7) is denied.

Movant states in his notice of motion that he is also seeking relief pursuant to CPLR 3211(a)(1) and 3212. Pursuant to 3211(a)(1), dismissal is warranted only if the documentary evidence conclusively establishes a defense to the asserted claim as a matter of law and utterly refutes factual allegations. (Leon v Martinez, 84 NY2d 83, 88 [1994]). Defendant cites plaintiff's "complaint . . . as the primary determinative document." He also claims that his own affidavit, and letters by plaintiff's principal are "documentary corroboration definitively establishing that the individual defendant should not be held personally liable." These documents are not the kind of evidence contemplated by CPLR 3211(a)(1) and do not conclusively refute plaintiff's claims. (CPLR 3211; Siegel, Practice Commentaries, CPLR C3211:10). Therefore, the motion to dismiss pursuant to CPLR 3211(a)(1) is denied.

Cambio's notice of motion also cites CPLR 3212, but his supporting affidavits focus mainly on his motion to dismiss. Regardless, as discussed, issues of fact exist as to whether Cambio was personally involved in the construction. Moreover, a motion pursuant to CPLR 3212 is premature at this juncture. Therefore, the motion is denied without prejudice to renew.

Conclusion

For the foregoing reasons, the defendant's motion to dismiss pursuant to CPLR 3211(a)(1) and (a)(7) is denied. The motion pursuant to CPLR 3212 is denied without prejudice to renew following conclusion of discovery.

The foregoing constitutes the decision and order of the court.

E N T E R:

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J.S.C.