LLC v. MIKE GEE (2023)

Plaintiff Hammer Promotions LLC moves under CPLR 3404 to restore this matter to active status and, upon restoring the matter, for leave under CPLR 3025 (b) to amend the complaint. The motion is denied.

On October 21, 2021, plaintiff and defendants, Certified Celebrity Bookings, Inc. ("CCB"), and Mike Gee, entered into an agreement under which defendants would secure a musical artist's performance at plaintiff's event. After plaintiff wired defendants the initial deposit, defendants rescinded the contract claiming that the artist had cancelled for personal reasons. Plaintiff requested a refund for its payment from defendants. But other than two nominal payments totaling $4,500, defendants did not return plaintiff's money.

Plaintiff commenced this action in May 2022 alleging that defendants had breached the parties' agreement. After defendants did not answer or appear in the action, plaintiff moved for default judgment. On December 13, 2022, this court granted plaintiff default judgment on its second cause of action for unjust enrichment as against defendant CCB but dismissed the action as against defendant Gee. (See Hammer Promotions LLC v Certified Celebrity Bookings, Inc., 2022 NY Slip Op 51274[U], at *2 [Sup Ct, NY County 2022] [denying the unjust-enrichment claim against defendant Gee, because "[p]laintiff sent the fee it now seeks to recoup to a CCB account, not one held by Gee personally," and because "plaintiff has not set forth facts that might warrant this court's piercing the corporate veil"].)

Plaintiff now moves to restore the action against defendant Gee under CPLR 3404. That provision, however, permits restoration of an action that has been marked off or struck from the calendar. Here, on the other hand, the action against Gee was dismissed under CPLR 3211 (a) (7) for failure to state a cause of action. (See id.) No basis exists to restore the action under CPLR 3404. Plaintiff's motion may be fairly construed as seeking relief in the nature of renewal under CPLR 2221 (e). But even then, the motion would be meritless.

CPLR 2221 (e) requires a movant to submit "new facts not offered on the prior motion that would change the prior determination." This court's December 2022 order concluded that plaintiff's facts were insufficient to bring an unjust-enrichment claim against Gee. (See 2022 NY Slip Op 51274[U], at *2.) To warrant renewal, therefore, plaintiff must submit new facts showing either (1) that Gee personally received plaintiff's initial deposit, or (2) that the extent of Gee's control over CCB warrants piercing the corporate veil. Plaintiff has not done so.

Plaintiff represents in its motion papers that following entry of judgment against CCB, plaintiff served an information subpoena with restraining notice on Wells Fargo Bank—the bank to which defendants had previously instructed plaintiff to wire money. (NYSCEF No. 43 at ¶¶ 8-9.) Plaintiff alleges, based on Wells Fargo's responses to the subpoena, that Mike Gee's true name is Michael Green and that Gee closed CCB's Wells Fargo account shortly after CCB's second nominal payment to plaintiff. Plaintiff also alleges that it learned from non-party Mark Goins that Goins had also executed an agreement with defendants and that defendants had failed to perform and refund Goins's initial deposit. The contract between Goins and defendants displays CCB's logo at the top but instructs Goins to wire payments to a different corporate entity named Certified Celebrity Agency, Inc. ("CCA"). (See NYSCEF No. 50 at 1-2 [Goins agreement].) According to plaintiff, CCA is incorporated under the same address as CCB. (See NYSCEF No. 49 [Certified Celebrity Agency, Inc., DOS details].)

Plaintiff argues that these new facts prove that Gee owns CCA and CCB and that he is using them "as his own personal bank, shifting funds from one entity to the next in an attempt to outrun money judgments for his wrongdoings." (NYSCEF No. 43 at ¶ 16.) This may or may not be true. But for this court to grant renewal of this action, plaintiff's factual allegations need to show that Gee was unjustly enriched by retention of plaintiff's deposit.

Plaintiff does not contend that Gee received plaintiff's initial deposit directly. With respect to veil piercing, plaintiff provides only reason to believe (through the evidence of Mark Goins's interactions with Gee and CCA) that Gee has an ownership interest in both CCB and CCA. Plaintiff has not identified facts that would establish that Gee exercises complete domination and control over these entities or disregards their corporate formalities—a precondition to piercing the corporate veil to hold Gee liable for a deposit received by CCB. The new facts plaintiff provides on this motion would not alter this court's prior determination dismissing plaintiff's unjust-enrichment claim as against Gee. Renewal is not warranted. (See Casillas-Reyes v John, 200 AD3d 512, 512 [1st Dept 2021].)

Plaintiff also moves under CPLR 3025 (b) for leave to amend its complaint to add a new common-law fraud (or possibly fraudulent-conveyance) claim against Gee and CCA. (See NYSCEF No. 51 at 11 [proposed new cause of action].) But plaintiff already obtained judgment on its unjust-enrichment claim against CCB (see NYSCEF No. 33 [money judgment entered by County Clerk]); plaintiff's remaining claims against CCB and against Gee were all dismissed (see 2022 NY Slip Op 51274[U], at *2); and, as discussed above, plaintiff has not shown that this court should reconsider the dismissal of those claims. There is thus no live complaint in this action that could be amended. The request for leave to amend is denied.

Accordingly, it is

ORDERED that plaintiff's motion is denied.

DATE 6/27/2023

Gerald Lebovits, J.