Kallman v. Pinecrest Modular Homes, Inc.

• Decision Date: 08 February 2011
• Citation: 916 N.Y.S.2d 221,81 A.D.3d 692
• Parties: Marc Scott KALLMAN, et al., appellants, v. PINECREST MODULAR HOMES, INC., defendant, Jonathan Davidson, et al., respondents.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 221 81 A.D.3d 692 Marc Scott KALLMAN, et al., appellants, v. PINECREST MODULAR HOMES, INC., defendant, Jonathan Davidson, et al., respondents. Supreme Court, Appellate Division, Second Department, New York. Feb. 8, 2011.

Marc Scott Kallman, P.C., Garden City, N.Y., for appellants.

Joseph & Terracciano, LLP, Syosset, N.Y. (Janine T. Lynam and James N. Joseph of counsel), for respondents and the defendant Pinecrest Modular Homes, Inc.

PETER B. SKELOS, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and LEONARD B. AUSTIN, JJ.

In an action to recover damages, inter alia, for breach of contract, negligence, and breach of fiduciary duty, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), dated August 13, 2009, as granted that branch of the motion of the defendants Jonathan Davidson and Brian Draizin which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs commenced this action against, among others, Pinecrest Modular Homes, Inc. (hereinafter Pinecrest), Jonathan Davidson, and Brian Draizin, inter alia, to recover damages for breach of an oral contract to provide home construction services and for the return of a down payment provided in connection with that agreement. The individual defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motion. We affirm.

Davidson, the President and sole shareholder of Pinecrest, and Draizin, the President of Draco, Inc., a corporation employed as a consultant by Pinecrest (hereinafter together the individual defendants), established their prima facie entitlement to judgment as a matter of law dismissing the causes of action predicated upon the oral contract by demonstrating that the plaintiffs' contract was with Pinecrest, that they had acted in their corporate capacities, and that there was no basis upon which to pierce the corporate veil to hold them personally liable ( see Matter of Morris v. New York State Dept. of Taxation & Fin., 82 N.Y.2d 135, 603 N.Y.S.2d 807, 623 N.E.2d 1157; Millennium Constr., LLC v. Loupolover, 44 A.D.3d 1016, 845 N.Y.S.2d 110; Maggio v. Becca Constr. Co., 229 A.D.2d 426, 644 N.Y.S.2d 802; Gottehrer v. Viet-Hoa Co., 170 A.D.2d 648, 649, 567 N.Y.S.2d 71). In opposition, the plaintiffs failed to raise a triable issue of fact, inter alia, as to whether the individual defendants "abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice" against them ( Matter of Morris v. New York State Dept. of Taxation & Fin., 82 N.Y.2d at 142, 603 N.Y.S.2d 807, 623 N.E.2d 1157; see Millennium Constr., LLC v. Loupolover, 44 A.D.3d at 1016-1017, 845 N.Y.S.2d 110; Gottehrer v. Viet-Hoa Co., 170 A.D.2d at 649, 567 N.Y.S.2d 71).

While an officer of a corporation " 'who participates in the commission of a tort by the corporation is personally liable therefor' " ( Widlitz v. Scher, 148 A.D.2d 530, 530, 540 N.Y.S.2d 179, quoting Bellinzoni v. Seland, 128 A.D.2d 580, 580, 512 N.Y.S.2d 846), the Supreme Court properly dismissed the negligence...