SIMMONS v. Lawrence Loscalzo, et al., Appellants.

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

Anna Marie SIMMONS, et al., Respondents, v. AAA BUFFALO DEVELOPMENT CORP., et al., Defendants, Lawrence Loscalzo, et al., Appellants.

Decided: August 19, 2002

FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, ANITA R. FLORIO and SANDRA J. FEUERSTEIN, JJ. Lewis, Johs, Avallone, Aviles & Kaufman, LLP, Melville, N.Y. (Christine Malafi and Ann K. Kandel of counsel), for appellant Lawrence Loscalzo. Michael B. Schulman & Associates, P.C., Plainview, N.Y., for appellant Victor Pafundi. Rappaport, Glass, Greene & Levine, LLP, Melville, N.Y. (Matthew J. Zullo of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant Lawrence Loscalzo appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Kitson, J.), entered February 26, 2001, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him, and the defendant Victor Pafundi separately appeals from so much of the same order as denied his separate motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying the motion of the defendant Lawrence Loscalzo for summary judgment dismissing the complaint insofar as asserted against him, and substituting therefor a provision granting that motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The infant plaintiffs were injured in a fire which destroyed a house owned by the defendant AAA Buffalo One Development Corp. (hereinafter AAA).   The sole shareholder of AAA is the defendant Lawrence Loscalzo.   The defendant Victor Pafundi, as agent for AAA, had rented the house to the infant plaintiffs' parents, the plaintiffs Lisa Marie Simmons and Jeffrey Simmons.   The plaintiffs brought this action against, among others, AAA, Pafundi, and Loscalzo in his personal capacity.

After depositions were held, Loscalzo and Pafundi separately moved for summary judgment dismissing the complaint insofar as asserted against each of them.   The Supreme Court denied the motions, finding the existence of triable issues of fact as to both Loscalzo and Pafundi.   We find that the Supreme Court erred in denying Loscalzo's motion and therefore modify the order and grant his motion.

Loscalzo demonstrated the absence of a triable issue of fact with respect to his personal liability by establishing that he was a corporate officer only, and not the personal owner of the premises.   In opposition thereto, the plaintiffs failed to raise sufficient facts to warrant a finding that the corporate veil should be pierced. Accordingly, the Supreme Court should have granted Loscalzo's motion and dismissed the complaint insofar as asserted against him in his personal capacity (see Lavi v. Hamedani, 234 A.D.2d 428, 651 N.Y.S.2d 126;  Seuter v. Lieberman, 229 A.D.2d 386, 644 N.Y.S.2d 566;  Letizia v. Executive Coach Auto Repair, 213 A.D.2d 382, 623 N.Y.S.2d 327;  see generally Matter of Morris v. New York State Dept. of Taxation & Fin., 82 N.Y.2d 135, 603 N.Y.S.2d 807, 623 N.E.2d 1157).

The parties' remaining contentions are either without merit or need not be reached in light of this determination.

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