Fuller & D' Angelo, P.C. v Cornerstone Hospitality

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Fuller & D' Angelo, P.C. v Cornerstone Hospitality 2012 NY Slip Op 32357(U) May 10, 2012 Supreme Court, New York County Docket Number: 111607/2009 Judge: Lucy Billings 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. SCANNED ON 911212012 [* 1] - NEW YORK SUPREME COURT OF THE STATE OF NEW YORK LUCY BILLlMGS PRESENT: COUNTY PART 46 Justice INDEX NO. Index Number : I 11607/2009 FULLER AND D ANGELO, P.C. vs. CORNERSTONE HOSPITALITY SEQUENCE NUMBER : 002 MOTION DATE MOTION SEQ. NO. AMEND SUPPLEMENT PLEADINGS MOTION CAL. NO. The following papers, numbered 1 t o 3 were read on thls motion tolfpf fk W V W M M - PAPERS NUMBERED Notice of Motionl Order to Show Cause Answering Affldavits - Affidavits - Exhibits ... - Exhibits 5 ~ 3 Replying Affidavits Crbss-Motion: P.L.E. S f 1 0 Yes ENo 03~303SC~J. UNFlLED JUDGMENT This Iudgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk s Desk (Room I41B). . _ _ _ -* . - J. S. C. Check one: 0 NON-FINA L%lSPOSITION 0 DO NOT POST D REFERENCE FINAL DISPOSITION Check if appropriate: n SUBMIT ORDER/JUDG. d fb [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 4 6 ___________________-_-_---_--__--____ FULLER and D'ANGELO, P.C., ARCHITECTS and PLANNERS, -X Index No. 111607/2009 Plaintiff - against - DECISION AND QRDER CORNERSTONE HOSPITALITY ADVISORS, BLACKSTAR DEVELOPMENT, INC., JOSHUA CASPI, and ARYN SPAHR, Defendants LUCY BILLINGS, J.S.C.: Plaintiff moves to amend its complaint to add an account stated claim against defendant Caapi and to sever the action against defendant Cornerstone Hospitality Advisors on plaintiff's first claim for breach of contract and against defendant Blackstar Development, Inc., on plaintiff's tenth claim for an account stated. C.P.L.R. §§ 603, 3025(b). In a deciBion and order dated August 2, 2011, the court granted plaintiff summary judgment on those claims against defendant entities. C.P.L.R. § 3212(b) and (e). Pursuant to the parties stipulation dated May 10, 2012, the court grantB plaintiff's motion insofar as it seeks the severance, since the decision and order dated August 2 , 2011, provides plaintiff full recovery against those defendants. C.P.L.R. § 603. The Clerk shall e n t e r a judgment on those claims, each for $28,310.50, with costs and disbursements to be taxed by the Clerk upon submission of a bill of costs. §§ 8101, 8201, 8301(a), 8401. fullcr.141 C.P.L.R* Since the first claim, in contrast 1 [* 3] to the tenth claim, does not seek interest, interest shall run at 9% per year against Cornerstone Hospitality AdviBors from the date this defendant s liability was determined, August: 2 , 2011. C.P.L.R. § 5002. E.q., Denio v. State of New York, 7 N.Y.3d 159, 167 (2006); Pay v , St ate of New Yoyk, 87 N.Y.2d 1011, 1013 (1996); Rohrinq v. City of Niaqara Falls, 84 N.Y.2d 60, 68-69 (1994); Bermio v. Atakent, 241 A.D.2d 235, 247 (1st Dep t 1998). Interest shall run at 9% per year against Blackstar Development, Inc., from December 8, 2008, when Caspi, on Blackstar Development s behalf, responded to and thus acknowledged receipt of plaintiff s demand f o r payment of $28,310.50. C.P.L.R. 5001(a) § and (b). E.q., Richard Friedman Assoc., CPA PC v. Jereski, 26 A.D.3d 296, 297 (1st Dep t 2006). See RPI Professional Alter:natives, I n c . v. Citiqroup Global Mkts, Inc., 61 A.D.3d 618, 620 (1st Dep t 2009); Eisen v. Feder, 47 A.D.3d 595, 596 (1st Dep t 2008); Tesser v. Allboro Equip, C o . , 73 A.D.3d 1023, 1027-28 (2d Dep t 2010); Home I n sulation & S u m ly , J p c , v. Buchheit, 59 A . D . 3 d 1078, 1079 (4th Dep t 2009). The court denies plaintiff s motion insofar as it seeks to amend the complaint to add an account stated claim against Caspi. The decision and order dated August 2, 2011, granted summary judgment dismissing all claims agsint the individual defendants Caspi and Spahr. C.P.L.R. § 3212(b) and (e). Plaintiff presents no evidence to support an account stated claim against Caspi other t h a n the evidence presented in support of plaintiff s prior motion and defendants prior cross-motion for partial summary fuller.141 2 [* 4] judgment: that he received plaintiff's invoices addreaeed to him on Blackstar Development's behalf at Blackstar Development at its business address. This evidence f a i l s to meet plaintiff's burden to demonstrate the proposed claim's merit. < Sona Realty Co., 18 A.D.3d 352, 355 (1st Dep't 2005); Pacheco v. Fifteen Twenty $e.ven ABBOC., 275 A.D.2d 282, 2 8 4 (1st Dep't 2000); Non-Linear Tradinq 116 (1st Dep't 1998) . Co, v. Braddia Assocs., 243 A.D.2d 107, Sabo v. Alan B. Brill, P.C., 25 A.D.3d 420, 421 (1st Dep't 2006); Thornpaon v. Cooper, 24 A.D.3d 203, 205 (1st Dep't 2005); Watts v. Winq, 308 A.D.2d 391, 392 (1st Dep't 2003). Absent evidence indicating an underlying relationship or Caapi's acknowledgment of an agreement between plaintiff and Caspi, Unclaimed Prop, RecQverv Serv., Inc. v. UBS Paine Webber Inc., 58 A.D.3d 526 (1st Dep't 2009); Ryan Graphics, Inc. v, Bailin, 39 A.D.3d 249, 251 (1st Dep't 2007); Risk Mqt. Planninq Group, Inc. v, Cabrini Med. Ctr., 63 A.D.3d 421 (1st Dep't 2009); R a i Jewelers v. Dialuck Corp., 300 A.D.2d 124, 126 (1st Dep't 2002), or his misuee of the corporation as a vehicle for his own personal business, plaintiff fails to support a claim against him individually. Do Gooder Prods., Inc. v. American Jewish Theatre, J n c . , 66 A.D.3d 527, 528 (1st Dep't 2009); Matias v. Mondo Props. LLC, 43 A.D.3d 367, 368-69 (1st Dep't 2007); ShimamQto v. S&F Warehouses, 257 A.D.2d 334, 340 (1st Dep't 1999). See Shisqal v . Brown, 21 A.D.3d 845, 848-49 (1st Dep't 2005); Brito v. DILP C o r p . , 282 A.D.2d 320, 321 (1st Dep't 2001). fuller.141 3 [* 5] The mere fact that Caspi's name is listed as the contact person or authorized representative for the corporation does not implicate his individual liability. Matias v..Mondo P r o p s . LLC, 43 A.D.3d at 368. Even if Caspi controlled the management of the corporation's business, individual liability on such a basis "would obviate the legal distinction between a corporation and its officers, share owners and employees." I .at d 3 6 9 (citation omitted). In sum, the court den es plaintiff's motion to amend its complaint to add an account stated claim against defendant Caapi, but grants plaintiff's motion to sever the action against defendant Cornerstone Hospitality Advisors on plaintiff's first claim for breach of contract and against defendant Blackstar Development, Inc., on plaintiff's tenth claim f o r an account stated. C.P.L.R. §§ As set f o r t h above, the Clerk 603, 3025(b). shall enter a judgment: (1) against defendant Cornerstone Hospitality Advisors on plaintiff's first claim for $28,310.50, with interest at 9% p e r year from August 2, 2011, C . P . L . R . § 5002, and against defendant Blackstar Development, Inc., on (2) plaintiff's tenth claim for $28,310.50, with interest at 9% per year from December 8 , 2008, C.P.L.R. § 5 0 0 1 ( a ) and (b), plus costs and disbursements. 8401. C.P.L.R. § § 8101, 8201, 8301(a), This decision constitutes the court's order and its judgment on t h e severed claims. DATED: - June 20, 2012 L'"3 r n l r * 3 S LUCY BILLINGS, J.S.C. fuller.141 4 [* 6] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK So Ordered, Attorney for Defendant J. S. C. LUCY BILLINGS J.S.C.

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