Cusumano v. Iota Industries, Inc.
| Decision Date | 16 April 1984 |
| Citation | 100 A.D.2d 892,474 N.Y.S.2d 579 |
| Parties | Frank R. CUSUMANO, Respondent, v. IOTA INDUSTRIES, INC., et al., Defendants; Louis J. Nicastro, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Golenbock and Barell, New York City (Arthur M. Handler and Michael M. Meadvin, New York City, of counsel), for appellant.
Morton Povman, P.C., Forest Hills, for respondent.
Before MANGANO, J.P., and BRACKEN, O'CONNOR and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for breach of contract, defendant Nicastro appeals from so much of an order of the Supreme Court, Queens County, dated June 6, 1983, as denied that branch of his motion which was to dismiss the first cause of action of the complaint as against him "without prejudice to renewal following his examination before trial by plaintiff".
Order reversed insofar as appealed from, on the law, without costs or disbursements, and that branch of defendant Nicastro's motion which was to dismiss the first cause of action of the complaint as against him is granted.
The first cause of action of the plaintiff's complaint, sounding in breach of contract, seeks damages of $1,000,000, which plaintiff claims is due him as a finder's fee, for arranging a certain corporate merger. Although the complaint names the individual defendant Nicastro in the caption, the allegations contained in the complaint fail to mention Nicastro, much less allege any facts upon which personal liability of Nicastro to the plaintiff can be predicated. Moreover, the plaintiff's papers in opposition to that branch of Nicastro's motion which was to dismiss the first cause of action as to him did not serve to cure this defect in the complaint, since it merely contained conclusory statements that Nicastro was the "alter ego" of the corporations with whom plaintiff had allegedly contracted to perform financial services. Under these circumstances that branch of Nicastro's motion which was to dismiss the first cause of action of the complaint as to him should have been granted (CPLR 3012; Ragto Inc. v. Schneiderman, 69 A.D.2d 815, 414 N.Y.S.2d 746, affd 49 N.Y.2d 975, 428 N.Y.S.2d 949, 406 N.E.2d 804; Dember Constr. Corp. v. Staten Is. Mall, 56 A.D.2d 768, 392 N.Y.S.2d 299; Weis v. Selected Meat Packers, 91 A.D.2d 1085, 458 N.Y.S.2d 313).
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