H Danforth Irwin v Black Tap 14th St, LLC

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H Danforth Irwin v Black Tap 14th St, LLC 2019 NY Slip Op 30386(U) February 15, 2019 Supreme Court, New York County Docket Number: 157251/2018 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 02/20/2019 11:45 AM NYSCEF DOC. NO. 134 INDEX NO. 157251/2018 RECEIVED NYSCEF: 02/20/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: IAS MOTION 32 PART HON. ARLENE P. BLUTH Justice - ------------------------------------------------------------------------•---~--X H DANFORTH IRWIN, IN DEX N 0. 157251/2018 - MOTION ,DATE Plaintiff, MOTION SEQ. NO. 002 - v -- BLACK TAP 14TH ST, LLC,BLACK TAP HOSPITALITY GROL)P, · LLC,BLACK TAP ICE CREAM LLC,ISIDORI BARISH MANAGEMENT, LLC,ISIDORI BARISH HOSPITALITY GROUP, LLC,CHRISTOPHER BARISH, JOSPEH ISIDORI, 248 HOSPITALITY GROUP LLC,ANGELA NICASTRO, ELENODOROS THEODOULOU, EVAN FROST, JOHN AND JANE DOES, JOHN DOE CORPORATIONS NOS. 1-10, JOHN DOE ENTITIES NOS. 110, A.J. MELINO & ASSOCIATES, INC.,ANGELO MELINO DECISION AND ORDER Defendant. ------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37, 38, 39, 40,41,42,43,44,45,46,47,48,49, 54-60,61,63, 72,73, 74, 75, 76, 77, 78,79, 80 were read on this motion to/for JUDGMENT-DEFAULT The motion by plaintiff for a default judgment against defendants Black Tap 14th St, LLC, Black Tap Hospitality Group, LLC,. Black Tap Ice Cream LLC, Isidofi Barish . Management, LLC, Isidori Barish Hospitality Group; LLC, Joseph Isidori, Angela ~icastro, Elenadoros Theodoulou, and Evan Frost is denied. The cross-motion by defendants Nicastro, Theodoulou and Frost to dismiss is granted. Background This action arises out of a physical altercation that occurred at a restaurant ("Black Tap") located on West 14th Street in Manhattan on August 5, 2017. Plaintiff claims that he entered Black Tap, saw an empty stool at the bar and asked the hostess whether he could sit there. Plaintiff alleges that the hostess rudely informed him that the seat was saved for a friend of the security guard. Plaintiff demanded to speak with the hostess' manager. 157251/2018 IRWIN, H DANFORTH vs. BLACK TAP 14TH ST, LLC Motion No. 002 1 of 5 Page 1of5 [*FILED: 2] NEW YORK COUNTY CLERK 02/20/2019 11:45 AM NYSCEF DOC. NO. 134 INDEX NO. 157251/2018 RECEIVED NYSCEF: 02/20/2019 Plaintiff contends that the hostess.told the security guard arid the security guard came over to plaintiff. Plaintiff complains that the ·security guard started berating plaintiff and plaintiff . . tried to take a photo of the empty bar seat (with his phone) before attempting to leave Black Tap. Plaintiff insists that the security guard then attacked plaintiff without provocation by grabbing plaintiffs phone, hitting plaintiff on the left side of his face and grabbing him by his neck as he escorted plaintiff out of the restaurant. Plaintiff also argues that the security guard made racial comments (plaintiff is white and alleges that the security guard is black). Default:Judgment Plaintiff moves for a default judgment against many of the named defendants. However, since the instant motion was filed plaintiff entered into a stipulation allowing certain defendants to answ~r (see NYSCEF Doc. No. 70). Therefore; the motion for a default judgment against these defendants (this includes Black Tap 14th St, LLC, Black Tap Hospitality Group, LLC, . Black Tap Ice Cream LLC, Isidori Barish Management, LLC, Isidori Barish Hospitality Group, . LLC and Joseph Isidori) is moot . . The motion for a default judgment against defendants Nicastro, Theodoulou arid Frost is also denied as m.oot because plaintiff attempted to re-serve these defendants after they crossmoved to dismiss and asserted improper service (see NYSCEF Doc. Nos. 66, 67, 69 [affidavits of service]). Re-serving these defendants implies that they were not initially served correctly. Cross-Motion to Dismiss Nicastro, Theodoulou and Frost(collectively, the "Moving Defendants") cross-move to dismiss on the grounds that they were not properly served and that plaintiff has not state a· cause of action against them. 1The Moving Defendants claim that the place where all three of the 1 The Court observes that although the Moving Defendants allege that dismissal is warranted due to improper service, their notice of motion failed to cite the relevant CPLR section. and only cites CPLR 321 l(a)(7). 157251/2018 IRWIN, H DANFORTH vs. BLACK TAP 14TH Motion No. 002 · ST, LLC 2 of 5 Page 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 02/20/2019 11:45 AM NYSCEF DOC. NO. 134 INDEX NO. 157251/2018 RECEIVED NYSCEF: 02/20/2019 Moving Defendants were served (a house in Staten Island) was the childhood home of defendant Theodoulou and that neither Nicastro nor Frost ever lived there. Theodoulou acknowledges that his parents still live at this address in Staten Island but insists that he no longer lives there and provides anot~er address where he has allegedly lived for the last five years (NYSCEF Doc. No. 73, ~~ 3-5). The Moving Defendants also argue that plaintiff failed to state a cause of action against these defendants because they are all principals of defendant 248 Hospitality Group LLC ("248 LLC") and plaintiff has not pled allegations sufficient to pierce the corporate veil. The Moving Defendants claim that they cannot be held personally liable for the. actions of a corpor~tion without exercising complete domination and control over the corporate entity. In opposition, plaintiff claims that the cross-motion was defective due to its untimeliness and that the process server's affidavit should entitle plaintiff to a default judgment. As an initial matter, the Court will address the failure to state a cause of action branch of the mot~on to dismiss rather than the improper service argument because, as stated above, the notice of motion failed to cite the applicable CPLR provision (CPLR 3211 [a][8]) for that argument. "On a CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action, the complaint must be construed in the light most favorable to the plaintiff and all factual allegations must be accepted as true. Further, on such amotion, the complaint is to be construed liberally and all reasonable inferences must be drawn in favor of the plaintiff' (Alden Global Value Recovery Master Fund L.P. v Key Bank Natl. Assoc., 159 AD3d 618, 621-622, 74 NYS3d 559 [1st Dept 2018] [internal quotations and citations omitted]). 157251/2018 IRWIN, H DANFORTH vs. BLACK TAP 14TH ST, LLC Motion No. 002 3 of 5 Page 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 02/20/2019 11:45 AM NYSCEF DOC. NO. 134 INDEX NO. 157251/2018 RECEIVED NYSCEF: 02/20/2019 "Generally ... piercing the corporate veil requires a showing that: (1) the owne.rs 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 plaintiffs injury" (Morris v New York State Dept. of Taxation and Finance, 82 NY2d 135, 141, 603 NYS2d 807 [1993]). The Court finds that plaintiff failed to state a cause of action ag~inst the Moving Defendants. The complaint alleges that the Moving Defendants operated Black Tap through 248 LLC and that there were issues regarding a license agreement to operate under the "Black Tap brand" (NYSCEF Doc. No. 1, ifif 23-24). Completely absentfrom the complaint is any allegation that Nicastro, Frost or Theodoulou were personally responsible for plaintiff's assault or that they exerted complete domination over 248 LLC to merit l_iability under a theory of piercing the corporate veil. There is simply no basis to find that the Moving Defendants did anything · individually that contributed to plaintiff's assault nor is there any notion that 248 LLC was a sham corporation. And whether or not the corporate formalities were followed by the Moving Defendants is besides the point because this case is about an alleged assault by a security guard. In order for plaintiff to state a cause of action under a piercing the corporate veil theory, the alleged domination of the corporate entity must cause plaintiff's injury (Morris, 82 NY2d at 135). In other words, there must be a connection between the alleged domination over the corporation and the alleged assault suffered by plaintiff. That is not the case here. Plaintiff did not offer anything in his complaint or in his opposition to the Moving Defendants' cross-motion that suggests that his assault was caused by the Moving Defendants' abuse of the corporate form. Instead, the allegation appears to be that a security guard overreacted. Therefore, if there is any 157251/2018 IRWIN, H DANFORTH vs. BLACK TAP 14TH ST, LLC Motion No. 002 4 of 5 Page 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 02/20/2019 11:45 AM NYSCEF DOC. NO. 134 INDEX NO. 157251/2018 RECEIVED NYSCEF: 02/20/2019 liability with respect to 248 LLC, then it will remain with that entity and the Moving Defendants cannot be held personally liable. Accordingly, it is hereby ORDERED that the inotion for a default judgment by plaintiff is denied; and it is further ORDERED that the cross-motion by defendants Nicastro, Theodoulo_u and Frost to dismiss for failure to state a cause of action is granted, and the complaint is dismissed in its entirety as against these defendants with costs and disbursements as taxed by the Clerk of the .. Court upon presentation of proper papers therefor, and the Clerk is directed to enter judgment accordingly. Next Conference with remaining defendants: May 1( 2019 at 2:15 f>ATE/ CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: •. ~ CASE DISPOSED GRANTED D NON-FINAL DENIED ~Jli:1cARLENE GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES ~RANSFER/REASSIGN FIDUCIARY APPOINTMENT 157251/2018 IRWIN, H DANFORTH vs. BLACK TAP 14TH ST, LLC Motion No. 002 · 5 of 5 0 D P. BLUTH OTHER · REFERENCE Page 5 of 5

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