Capolino v. Goren

• Decision Date: 22 November 2017
• Citation: 65 N.Y.S.3d 272,155 A.D.3d 1414
• Parties: Kenneth L. CAPOLINO et al., Respondents, v. Lela GOREN, Appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1414
65 N.Y.S.3d 272

Kenneth L. CAPOLINO et al., Respondents,
v.
Lela GOREN, Appellant.

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

Nov. 22, 2017.

65 N.Y.S.3d 273

Goldberg Weprin Finkel Goldstein LLP, New York City (Matthew Hearle of counsel), for appellant.

Law Office of Teresi & Little, PLLC, Albany (Sarah M. Engster of counsel), for respondents.

Before: GARRY, J.P., DEVINE, MULVEY, AARONS and RUMSEY, JJ.

DEVINE, J.

155 A.D.3d 1414

Appeal from an order of the Supreme Court (McNally Jr., J.), entered October 14, 2016 in Albany County, which, among other things, denied defendant's cross motion to, among other things, change venue from Albany County to Westchester County.

In April 2012, plaintiffs agreed to sell real property in the City of Yonkers, Westchester County to Glenwood POH, LLC, with Glenwood granting a purchase money mortgage to plaintiffs and agreeing to provide security for any capital gains income tax liability incurred by them. Glenwood subsequently entered into a separate agreement in which it committed to providing confessions of judgment that would serve as security for plaintiffs' potential capital gains income tax liability. For reasons that are not made clear in either agreement, defendant, a member of Glenwood, personally executed two confessions of judgment in December 2012, one in favor of plaintiff Kenneth L. Capolino for $100,800 and the other in favor of plaintiff Glenplace Equities for $643,200.

Glenwood then transferred title and its obligations under the mortgage to another limited liability company of which defendant was the sole member. In March 2016, after defendant rebuffed a demand to reimburse plaintiffs for certain income taxes, plaintiffs commenced this action by filing a summons and motion for summary judgment in lieu of complaint in Albany County (see CPLR 3213 ). Plaintiffs sought judgment against defendant for the amounts set forth in the confessions of judgment that she had provided. Moreover, relying upon a provision in the purchase and sale agreement, plaintiffs served defendant with the summons and motion papers by mail.

Defendant served a demand to change venue to Westchester County. When plaintiffs opposed that demand, defendant cross-moved for dismissal due to a lack of personal jurisdiction or,

155 A.D.3d 1415

alternatively, for a change of venue. Supreme Court denied the cross motion in its entirety and, discerning material questions of fact, declined to grant summary judgment and directed the parties to serve formal pleadings. Defendant, focusing solely upon the denial of her cross motion, appeals.¹

65 N.Y.S.3d 274

Plaintiffs, in arguing that they properly venued this action in Albany County and served defendant by mail, rely upon provisions in the purchase and sale agreement between plaintiffs and Glenwood. Defendant and the limited liability companies of which she is a member "are distinct entities," however, and the former is not individually bound by the contractual commitments of the latter ( Angelino v. Francis J. Angelino, D.D.S., P.C., 83 A.D.3d 1186, 1188, 921 N.Y.S.2d 367 [2011] ;...