BELLE LIGHTING LLC v. ARTISAN CONSTRUCTION PARTNERS LLC (2019)

Judgment, Supreme Court, New York County (David B. Cohen, J.), entered October 26, 2018, in plaintiff's favor and against defendants, jointly and severally, in the amount of $471,771.37 with interest, unanimously affirmed, against defendants Artisan Construction Partners LLC and James Galvin, with costs.

To make a prima facie case on its breach of contract claim, plaintiff had to demonstrate “the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages” (Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426, 913 N.Y.S.2d 161 [1st Dept. 2010];  see also Nevco Contr. Inc. v. R.P. Brennan Gen. Contrs. & Bldrs., Inc., 139 A.D.3d 515, 33 N.Y.S.3d 166 [1st Dept. 2016] ).  It is undisputed that there were contracts between plaintiff and Artisan.  Plaintiff made a prima facie case on all of its contracts.  Galvin's conclusory assertion that plaintiff breached the contracts is insufficient to defeat summary judgment as he does not specify how plaintiff failed to perform (see Stonehill Capital Mgmt., LLC v. Bank of the W., 28 N.Y.3d 439, 448, 45 N.Y.S.3d 864, 68 N.E.3d 683 [2016][“bald, conclusory assertions or speculation and ‘(a) shadowy semblance of an issue’ are insufficient to defeat summary judgment”] [citations omitted] ).

Although plaintiff failed to satisfy the requirements for piercing Artisan's corporate veil (see e.g. Retropolis, Inc. v. 14th St. Dev. LLC, 17 A.D.3d 209, 211, 797 N.Y.S.2d 1 [1st Dept. 2005] ), liability may be imposed on Galvin (Artisan's president and sole member) as to the 1411 Broadway project on the theory that “a corporate officer who participates in the commission of a tort can be held personally liable even if the participation is for the corporation's benefit” (id. at 211, 797 N.Y.S.2d 1;  see also Sergeants Benevolent Assn. Annuity Fund v. Renck, 19 A.D.3d 107, 110, 796 N.Y.S.2d 77 [1st Dept. 2005] ).  Galvin pleaded guilty to forging lien waivers.  Plaintiff submitted waivers, containing forgeries of its principal's signature, as to the 1411 Broadway project but not the other projects.  The amount attributable to the 1411 Broadway project is $414,278.94.

Due to the existence of contracts between plaintiff and Artisan, which defendants admitted, the court should have denied plaintiff's motion for summary judgment on its second cause of action, which was for unjust enrichment (see e.g. Citibank, N.A. v. Soccer for a Cause, LLC, 169 A.D.3d 401, 403, 93 N.Y.S.3d 294 [1st Dept. 2019], lv denied 34 N.Y.3d 903, 2019 N.Y. Slip Op. 83020, 2019 WL 5558935 [Oct. 29, 2019] ).  In addition, “unjust enrichment is not a catchall cause of action to be used when others fail.  It is available only in unusual situations” (Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790, 944 N.Y.S.2d 732, 967 N.E.2d 1177 [2012] ).