Edward Tyler Nahem Fine Art, L.L.C. v. Barral

• Decision Date: 09 February 2016
• Parties: EDWARD TYLER NAHEM FINE ART, L.L.C., Plaintiff–Appellant, v. Alberto BARRAL, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 477
24 N.Y.S.3d 634

EDWARD TYLER NAHEM FINE ART, L.L.C., Plaintiff–Appellant,
v.
Alberto BARRAL, Defendant–Respondent.

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

Feb. 9, 2016.

24 N.Y.S.3d 635

Cahill Partners LLP, New York (John R. Cahill of counsel), for appellant.

Trachtenberg Rodes & Friedberg LLP, New York (Stephen Arena of counsel), for respondent.

FRIEDMAN, J.P., ACOSTA, ANDRIAS, SAXE, FEINMAN, JJ.

136 A.D.3d 478

Order, Supreme Court, New York County (Eileen Bransten, J.), entered August 4, 2014, which, insofar as appealed from as limited by the briefs, after a nonjury trial, denied the causes of action for piercing the corporate veil and fraud, unanimously affirmed, without costs.

The record amply supports the trial court's findings, based in part on credibility determinations (see 300 E. 34th St. Co. v. Habeeb, 248 A.D.2d 50, 54, 683 N.Y.S.2d 175 [1st Dept.1997] ), that defendant did not improperly use company funds for personal expenses, did not fail to adhere to corporate formalities, and did not significantly undercapitalize the company during its operation. Even if defendant's multiple ATM cash withdrawals from the company's bank account amounted to undercapitalization for the purpose of avoiding payment on a prior default judgment against the company, as plaintiff argues, it alone would be insufficient to justify piercing the corporate veil (see Fantazia Intl. Corp. v. CPL Furs N.Y., Inc., 67 A.D.3d 511, 889 N.Y.S.2d 28 [1st Dept.2009] ). Further, the evidence does not compel a finding that defendant made the withdrawals for the purpose of leaving the corporation judgment proof or to perpetrate a wrong against plaintiff (see James v. Loran Realty V Corp., 85 A.D.3d 619, 925 N.Y.S.2d 492 [1st Dept.2011], affd. 20 N.Y.3d 918, 956 N.Y.S.2d 482, 980 N.E.2d 532 [2012] ).

The record also supports the court's findings, which rest largely on credibility determinations, with respect to the fraud claim. Although...