PEGASUS AVIATION INC v. LLC

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Supreme Court, Appellate Division, First Department, New York.

PEGASUS AVIATION I, INC., et al., Plaintiffs-Respondents, v. VARIG LOGISTICA S.A., et al., Defendants, MatlinPatterson Global Advisers, LLC, Defendant-Appellant.

Decided: January 19, 2010

MAZZARELLI, J.P., SAXE, ACOSTA, DeGRASSE, MANZANET-DANIELS, JJ. Bracewell & Giuliani LLP, New York (Kenneth A. Caruso of counsel), for appellant. Boundas, Skarzynski, Walsh & Black, LLC, New York (James T. Sandnes of counsel), for respondents.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered April 21, 2009, which denied MatlinPatterson's motion to dismiss the complaint, unanimously affirmed, with costs.

This is an action for replevin and damages for breach of airplane leases.   Accepting the alleged facts as true and according plaintiff the benefit of every possible favorable inference (Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), the complaint sufficiently alleges that MatlinPatterson exercised complete domination over Varig Logistica-and was thus its alter ego-with respect to the transaction at issue, and that such domination facilitated the fraud or wrongdoing that resulted in 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 [1993] ).