MILLENNIUM CONSTRUCTION LLC v. Leonid Gizersky, additional counterclaim defendant-respondent. (2007)

In an action, inter alia, to recover damages for breach of contract, the defendant/counterclaim plaintiff Boris Loupolover appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 15, 2006, as granted the cross motion of the plaintiff/counterclaim defendant, Millennium Construction, LLC, and the additional counterclaim defendant, Leonid Gizersky, for summary judgment dismissing the counterclaims insofar asserted against the additional counterclaim defendant, Leonid Gizersky.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

 The plaintiff/counterclaim defendant, Millennium Construction, LLC (hereinafter Millennium), and the additional counterclaim defendant, Leonid Gizersky, established their prima facie entitlement to judgment as a matter of law dismissing the counterclaims insofar as asserted against Gizersky.   The Supreme Court correctly determined that there was no basis upon which to pierce the corporate veil of Millennium in order to hold its president and sole shareholder, Gizersky, personally liable.   A party seeking to pierce the corporate veil must establish 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 the 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;  see Old Republic Natl. Tit. Ins. Co. v. Moskowitz, 297 A.D.2d 724, 725, 747 N.Y.S.2d 556;  Hyland Meat Co. v. Tsagarakis, 202 A.D.2d 552, 552, 609 N.Y.S.2d 625).  “The party seeking to pierce the corporate veil must further establish that the controlling corporation abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against that party such that a court in equity will intervene” (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 Weinstein v. Willow Lake Corp., 262 A.D.2d 634, 635, 692 N.Y.S.2d 667;  Hyland Meat Co. v. Tsagarakis, 202 A.D.2d at 552, 609 N.Y.S.2d 625).  “The concept is equitable in nature, and the decision whether to pierce the corporate veil in a given instance will depend on the facts and circumstances” (Hyland Meat Co. v. Tsagarakis, 202 A.D.2d at 553, 609 N.Y.S.2d 625;  see Weinstein v. Willow Lake Corp., 262 A.D.2d at 635, 692 N.Y.S.2d 667).   Factors to be considered by a court in determining whether to pierce the corporate veil include failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use (see Shisgal v. Brown, 21 A.D.3d 845, 848, 849, 801 N.Y.S.2d 581;  Matter of Alpha Bytes Computer Corp. v. Slaton, 307 A.D.2d 725, 726, 762 N.Y.S.2d 328;  Forum Ins. Co. v. Texarkoma Transp. Co., 229 A.D.2d 341, 342, 645 N.Y.S.2d 786;  cf. John John, LLC v. Exit 63 Dev. LLC, 35 A.D.3d 540, 541, 826 N.Y.S.2d 657;  Sweeney, Cohn, Stahl & Vaccaro v. Kane, 6 A.D.3d 72, 78, 773 N.Y.S.2d 420). In opposition to the cross motion of Millennium and Gizersky, the defendant/counterclaim plaintiff, Boris Loupolover (hereinafter the appellant), failed to raise a triable issue of fact.   Accordingly, the Supreme Court properly granted the cross motion for summary judgment dismissing the counterclaims insofar as asserted against Gizersky.

We do not reach the appellant's contentions concerning his motion, inter alia, for sanctions against Millennium for failing to comply with discovery demands because such motion was not addressed by the Supreme Court in the order appealed from and thus remains pending and undecided (see Morris v. Queens-Long Is. Med. Group, P.C., 43 A.D.3d 394, 395, 840 N.Y.S.2d 426;  Hill v. 2016 Realty Assoc., 42 A.D.3d 432, 433, 839 N.Y.S.2d 801;  Lesisz v. Salvation Army, 40 A.D.3d 1050, 1052, 837 N.Y.S.2d 238;  Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99).

The appellant's remaining contentions are without merit.