VENTRESCA REALTY CORP v. HOULIHAN (2006)

In an action, inter alia, to recover damages for breach of contract, the defendants James G. Houlihan, Howard Parnes, and James J. Houlihan appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County (Tolbert, J.), entered December 21, 2004, as denied that branch of their motion pursuant to CPLR 3211(a)(7) which was to dismiss the complaint insofar as asserted against them for failure to state a cause of action.

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

 While “[t]he law permits the incorporation of a business for the very purpose of escaping personal liability” (Bartle v. Home Owners Co-op., 309 N.Y. 103, 106, 127 N.E.2d 832;  see Seuter v. Lieberman, 229 A.D.2d 386, 387, 644 N.Y.S.2d 566;  New York Assn. for Retarded Children, Montgomery County Chapter v. Keator, 199 A.D.2d 921, 922, 606 N.Y.S.2d 784), equity will intervene to pierce the corporate veil and permit the imposition of personal liability in order to avoid fraud or injustice (see Matter of Morris v. New York State Dept. of Taxation & Fin., 82 N.Y.2d 135, 140, 603 N.Y.S.2d 807, 623 N.E.2d 1157).  “The decision whether to pierce the corporate veil in a given instance depends on the particular facts and circumstances” (Weinstein v. Willow Lake Corp., 262 A.D.2d 634, 635, 692 N.Y.S.2d 667;  see Matter of Morris v. New York State Dept. of Taxation & Fin., supra at 141, 603 N.Y.S.2d 807, 623 N.E.2d 1157).

 Construing the complaint in the light most favorable to the plaintiff, and accepting as true the factual allegations set forth therein (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;  LoPinto v. J.W. Mays, Inc., 170 A.D.2d 582, 583, 566 N.Y.S.2d 357), the plaintiff adequately pleaded a cause of action to recover against the individual defendants for the alleged wrongs committed by the corporate defendant pursuant to a “[p]iercing [of] the corporate veil” theory (Weinstein v. Willow Lake Corp., supra at 635, 692 N.Y.S.2d 667;  see Brooke Realty-Dupont v. SBC Equip. Leasing Co., 248 A.D.2d 347, 669 N.Y.S.2d 626;  Meachum v. Outdoor World Corp., 235 A.D.2d 462, 652 N.Y.S.2d 749).   Contrary to the appellants' contention, the plaintiff sufficiently alleged that the appellants exercised complete dominion and control over the assetless corporation in order to commit a wrong against the plaintiff (see generally Matter of Morris v. New York State Dept. of Taxation & Fin., supra at 141, 603 N.Y.S.2d 807, 623 N.E.2d 1157;  CC Ming [USA] Ltd. Partnership v. Champagne Video, 232 A.D.2d 202, 648 N.Y.S.2d 21;  Fern, Inc. v. Adjmi, 197 A.D.2d 444, 602 N.Y.S.2d 615).   The appellants' remaining contentions raise factual and credibility issues, the resolution of which must await the joinder of issue and further proceedings.