INTERNATIONAL CREDIT BROKERAGE CO INC v. AGAPOV (1998)

Order, Supreme Court, New York County (Richard Braun, J.), entered on or about September 1, 1997, which, to the extent appealed from as limited by defendant's brief, denied defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(7), or, in the alternative, to stay the action pursuant to Business Corporations Law § 1312(a), unanimously affirmed, with costs.

Initially, we agree with the IAS court that plaintiff is authorized to do business in New York and, thus, is not barred from maintaining this action by Business Corporation Law § 1312(a) (compare, Dixie Dinettes, Inc. v. Schaller's Furniture, Inc., 71 Misc.2d 102, 335 N.Y.S.2d 632;  Tri-Terminal Corp. v. CITC Industries, Inc., 78 A.D.2d 609, 432 N.Y.S.2d 184).  Accordingly, that branch of defendant's motion seeking to stay the action pursuant to Business Corporations Law § 1312(a) was properly denied.

 As to the branch of defendant's motion seeking dismissal of the complaint for failure to state a cause of action, it too was properly denied.   Plaintiff pleads a viable cause of action for tortious interference with contract based on its assertion that defendant, a director in plaintiff corporation, induced a key employee to terminate his relationship with plaintiff by committing the independent tortious act of creating and displaying forged documents to the employee in an attempt to persuade him prematurely to terminate his employment agreement with plaintiff, which agreement had been signed by and was, therefore, known to defendant (see, e.g., Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 595 N.Y.S.2d 931, 612 N.E.2d 289;  compare, Feigen v. Advance Capital Management Corp., 150 A.D.2d 281, 283, 541 N.Y.S.2d 797, lv. denied, lv. dismissed 74 N.Y.2d 874, 547 N.Y.S.2d 840, 547 N.E.2d 95).   Since the independent tortious act complained of was beyond the scope of defendant's authority as a director, plaintiff also states a claim for breach of fiduciary duty.

 Finally, we agree with the IAS court that plaintiff's pleading seeking to pierce the corporate veil of OBLI USA, Inc., is sufficient to survive defendant's motion to dismiss.   The amended complaint, as supplemented by affidavits, alleges lack of corporate formalities, commingling of funds, and self-dealing.   Viewed in the light most favorable to the plaintiff, “it cannot be said that the complaint ‘is totally devoid of solid, nonconclusory allegations' ” regarding defendant's use of OBLI USA, Inc. as his corporate alter-ego (Sequa Corp. v. Christopher, 176 A.D.2d 498, 574 N.Y.S.2d 565, citing Perez v. One Clark Street Housing Corp., 108 A.D.2d 144, 145, 485 N.Y.S.2d 346;  see, also, 29/35 Realty Assocs. v. 35th Street New York Yarn Ctr., Inc., 181 A.D.2d 540, 541, 581 N.Y.S.2d 43).   Plaintiff may, therefore, continue his properly pleaded breach of contract claims against defendant individually.

MEMORANDUM DECISION.