Burton F. Clark, Inc. v. Hillside Cos.

CourtNew York Supreme Court Appellate Division
Citation2014 N.Y. Slip Op. 07038,121 A.D.3d 1236,995 N.Y.S.2d 242
PartiesBURTON F. CLARK, INC., et al., Doing Business as Clark Companies, Respondents, v. HILLSIDE COMPANIES, INC., Formerly Known as Hillside Homes and Development Corporation, Doing Business as Hillside Commercial Contracting, et al., Appellants.
Decision Date13 March 2015

?121 A.D.3d 1236
995 N.Y.S.2d 242
2014 N.Y. Slip Op. 07038

BURTON F. CLARK, INC., et al., Doing Business as Clark Companies, Respondents,
v.
HILLSIDE COMPANIES, INC., Formerly Known as Hillside Homes and Development Corporation, Doing Business as Hillside Commercial Contracting, et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 16, 2014
As Corrected March 13, 2015


Affirmed as modified.

[995 N.Y.S.2d 243]

Lewis & Greer, P.C., Poughkeepsie (J. Scott Greer of counsel), for appellants.

Young Sommer, LLC, Albany (Joseph F. Castiglione of counsel), for respondents.


Before: LAHTINEN, J.P., McCARTHY, ROSE, LYNCH and DEVINE, JJ. LAHTINEN, J.P.

Appeals (1) from an order of the Supreme Court (Lambert, J.), entered March 26, 2013 in Delaware County, which, among other things, granted plaintiffs' motion for partial summary judgment, and (2) from the judgment entered thereon.

Plaintiffs—subcontractors on a 2006 construction project—obtained a judgment in September 2010 for $166,877 plus interest and costs against the general contractor, defendant Hillside Companies, Inc. (hereinafter the corporation). In an effort to fully recover on that judgment, plaintiffs, among other things, commenced this litigation against defendants Michael Perez and Robert Tompkins—the corporation's owners and officers—as well as against the corporation and two related entities alleging unjust enrichment and seeking to pierce the corporate veil to reach Perez and Tompkins (hereinafter collectively referred to as the owners). Defendants' pre-answer motion to dismiss was denied. After issue was joined but before discovery, plaintiffs moved for summary judgment against the owners, and defendants cross-moved for partial summary judgment. Defendants' motion was denied. However, finding as a matter of law that the corporation's veil should be pierced, Supreme Court granted plaintiffs' motion and also awarded counsel fees to plaintiffs. Defendants appeal.

Piercing the corporation veil requires proof that: “(1) the owners 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 [the] plaintiff's injury” ( Matter of Morris v. New York State Dept. of Taxation & Fin., 82 N.Y.2d 135, 141, 603 N.Y.S.2d 807, 623 N.E.2d 1157 [1993] ). This has been characterized as a “heavy burden” ( TNS Holdings v. MKI Sec. Corp., 92 N.Y.2d 335,...

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