Fairpoint Cos. v. Vella

• Decision Date: 29 December 2015
• Citation: 134 A.D.3d 645,22 N.Y.S.3d 49
• Parties: FAIRPOINT COMPANIES, LLC, Plaintiff, v. Nancy McCormick VELLA, et al., Defendants. Mid–Atlantic Waterproofing of N.Y., Inc., Third–Party Plaintiff, v. Marlboro Group International, LLC, Third–Party Defendant. Nancy McCormick Vella, Plaintiff–Appellant, v. Fairpoint Companies, LLC, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 645

22 N.Y.S.3d 49

FAIRPOINT COMPANIES, LLC, Plaintiff,

v.Nancy McCormick VELLA, et al., Defendants.

Mid–Atlantic Waterproofing of N.Y., Inc., Third–Party Plaintiff,

v.Marlboro Group International, LLC, Third–Party Defendant.

Nancy McCormick Vella, Plaintiff–Appellant,

v.Fairpoint Companies, LLC, Defendant–Respondent.

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

Dec. 29, 2015.

Wasserman Grubin & Rogers, LLP, New York (Brian H. Fischkin of counsel), for appellant.

Zisholtz & Zisholtz LLP, Mineola (Joseph McMahon of counsel), for respondent.

MAZZARELLI, J.P., SWEENY, MANZANET–DANIELS, GISCHE, JJ.

Order, Supreme Court, New York County (Debra A. James, J.), entered March 20, 2015, which, to the extent appealed from, denied plaintiff Nancy McCormick Vella's motion to amend her complaint to add Marlboro Group International, LLC (Marlboro) as a defendant under an alter ego theory, unanimously affirmed, without costs.

Leave to amend a pleading " ‘shall be freely given’ absent prejudice or surprise resulting directly from the delay" (McCaskey, Davies & Assoc. v. New York City Health & Hosp. Corp., 59 N.Y.2d 755, 757, 463 N.Y.S.2d 434, 450 N.E.2d 240 [1983] ; see also CPLR 3025[b] ). The movant need not establish the merit of her proposed new allegations, but only that "the proffered amendment is not palpably insufficient or clearly devoid of merit" (MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500, 901 N.Y.S.2d 522 [1st Dept.2010] ).

To state a veil piercing claim, the plaintiff is required to show 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 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] ). Here, although plaintiff has sufficiently alleged that Marlboro dominated Fairpoint Companies, LLC (Fairpoint) with respect to the work that Fairpoint performed on her property, she failed to allege that Marlboro abused the corporate form of Fairpoint for the purpose of committing wrongdoing against or to avoid obligations to her (see TNS Holdings v. MKI Sec. Corp., 92 N.Y.2d 335, 339–340, 680 N.Y.S.2d 891, 703 N.E.2d 749 [1998] ).