O'Brien-Kreitzberg & Associates v. K.P., Inc.
| Decision Date | 10 August 1995 |
| Docket Number | BRIEN-KREITZBERG |
| Citation | 630 N.Y.S.2d 76,218 A.D.2d 519 |
| Parties | O'& ASSOCIATES, Plaintiff-Appellant, v. K.P., INC., et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
S. Cramer, for plaintiff-appellant.
D. Wortman, for defendants-respondents.
Before MURPHY, P.J., and ELLERIN, WALLACH, RUBIN and TOM, JJ.
Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about November 18, 1994, which granted defendants' motion to dismiss the complaint, and which denied plaintiff's cross motion for summary judgment, unanimously affirmed, without costs, and the complaint dismissed, without prejudice to commencement of an appropriate proceeding pursuant to CPLR 5225.
Plaintiff recovered a judgment for rent due under a lease for office space in a prior action captioned O'Brien-Kreitzberg v. Kanon Personnel. Kanon Personnel is now alleged to be out of business, and plaintiff has commenced this action seeking to enforce its judgment against defendant K.P., Inc. and its principal, David Wortman who, the complaint alleges, continues to operate the same business and to use the name "Kanon Personnel".
The relief sought by plaintiff is more appropriately obtained in a supplementary special proceeding pursuant to CPLR article 52 (CPLR 5225; e.g., Letizia v. Executive Coach Auto Repair, 213 A.D.2d 382, 623 N.Y.S.2d 327) rather than a plenary action. In either event, adequate proof is required to justify piercing the corporate veil of Kanon Personnel or setting aside any allegedly fraudulent conveyance to reach funds in the possession of K.P., Inc. or the individual defendant (Matter of PPX Enters. v. Chalpin, 209 A.D.2d 353, 619 N.Y.S.2d 19). Plaintiff has thus far failed in its efforts to obtain such proof in proceedings to enforce the judgment.
Whether plaintiff pursues the remedy of piercing the corporate veil or setting aside a fraudulent conveyance, it has not demonstrated that this action has merit. Plaintiff fails to set forth evidence "that the corporation is a 'dummy' for its individual stockholder[ ] who [is] in reality carrying on the business in [his] personal capacit[y] for purely personal rather than corporate ends" (Walkovszky v. Carlton, 18 N.Y.2d 414, 418, 276 N.Y.S.2d 585, 223 N.E.2d 6). Nor has plaintiff established that the judgment debtor's assets were actually transferred to another party without fair consideration (see, e.g., Matter of BSL Dev. Corp. v. Aquabogue Cove...
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