F&R Goldfish Corp. v. Furleiter

• Decision Date: 23 May 2022
• Docket Number: Index No. 521162/18
• Citation: 2022 NY Slip Op 31779 (U)
• Court: New York Supreme Court
• Parties: F&R GOLDFISH CORP., AND NEW YORK CITY FISH, INC., Plaintiffs, v. VLADIMIR FURLEITER, Individually and on behalf of ROYAL BALTIC, LTD., N.Y. FISH, INC., AND ROYAL DEVELOPMENT, INC., ALEXANDER KAGANOVSKY, Individually and on behalf of ROYAL BALTIC/ LTD., N.Y. FISH, INC., AND ROYAL DEVELOPMENT, INC., Defendants, ROYAL DEVELOPMENT INC., Third-Party Plaintiff, v. MYM SMOKED FISH, INC., MAXIM KUTSYK, YEFIM KUTSYK AND PAVEL ROYTKOV, Third-Party Defendants,

2022 NY Slip Op 31779(U)

F&R GOLDFISH CORP., AND NEW YORK CITY FISH, INC., Plaintiffs,
v.
VLADIMIR FURLEITER, Individually and on behalf of ROYAL BALTIC, LTD., N.Y. FISH, INC., AND ROYAL DEVELOPMENT, INC., ALEXANDER KAGANOVSKY, Individually and on behalf of ROYAL BALTIC/ LTD., N.Y. FISH, INC., AND ROYAL DEVELOPMENT, INC., Defendants,

ROYAL DEVELOPMENT INC., Third-Party Plaintiff,
v.
MYM SMOKED FISH, INC., MAXIM KUTSYK, YEFIM KUTSYK AND PAVEL ROYTKOV, Third-Party Defendants,

Index No. 521162/18

Supreme Court, Kings County

May 23, 2022

Unpublished Opinion

PRESENT: HON. LEON RUCHELSMAN, JUDGE

DECISION AND ORDER

HON. LEON RUCHELSMAN, JUDGE

The third party defendants MYM Smoked Fish Inc., Maxim Kutsyk and Pavel Roytkov have moved seeking summary judgement concerning the second, third, fourth and sixth third party claims. The third party plaintiff opposes the motion. Papers were submitted by the parties and after review of all the arguments this court now makes the: following determination.

As recorded in prior orders, on November 1, 2012 an entity called Royal Baltic Ltd., ceased operations at a fish smoking facility located at 738 Chester Street in Kings County, The

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property was: owned by an. entity called Royal Development Inc., that was owned by Vladimir Furleiter and Alexander Kaganovsky. Royal Development Inc., entered into a lease: agreement With New York City Fish Inc., wherein New York City Fish would pay rent and operate the fish smoking facility. It is alleged, that New York City Fish owes over $400/000 in rent. The third party complaint alleges causes of action for ejectment, unjust enrichment, - constructive trust, conversion, an injunction and breach of contract. The defendants' have now moved seeking summary judgement that the above noted claims cannot be sustained against the individuals Kutsyk and Roytkov because there is no evidence those individuals so dominated the corporation to the extent that individual liability is proper.

Conclusions of Law

Where the material facts at issue, in a case are in dispute summary judgment cannot be granted (Zuckerman v. City of Hew York, 49 N.Y.S.2d 557, 427 N.Y.S.2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause of any injury, however, where .only one conclusion, may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Marino v. Jamison, 189 A.D.3d 1021, 136 N.Y.S.3d 324 [2d Dept., 2021).

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It is well settled that to succeed on a request to pierce the corporate veil and hold an individual responsible for the liabilities of the corporation the plaintiff must demonstrate that" (1) the owners exercised complete dominion of the corporation in respect to the transaction attacked; and (2)that such dominion was used to commit a fraud or wrong against the plaintiff which resulted in plaintiffs injury" (Conason v. Megan Holding LLC, 25 N.Y.3d 1, 6 N.Y.S.3d 206 [2015]). "Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate- or LLC form include the failure to adhere to [corporate or] LLC formalities, inadequate capitalization, commingling of assets, and the personal use of {corporate or] LLC funds" (see. Grammas v. Lockwood Associates LLC, 95 A.D.3d 1073, 944 N.Y.S.2d 623 [2d Dept., 2012]).

Even if there are questions of fact whether third party plaintiff can pierce the corporate veil there can be no question of fact the cause of action for constructive trust must be dismissed. It is well settled that in order to impose a constructive trust the following four elements must be proven. There must be a confidential or fiduciary relationship, a promise, a...