SHORT FORM ORDER SUPREME COURT-STATE OF NEW YORK PRESENT: HON. BRUCE D. Plaintiff,

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1 SHORT FORM ORDER SUPREME COURT-STATE OF NEW YORK PRESENT: HON. BRUCE D. ALPERT Justice TRIAL/IA& PART 7 LISA J. PIETRO f/k/a LISA LOGAN, Plaintiff, -against- Index No. 674/03 Motion Date: May 16,2003 RAMPART BROKERAGE CORPORATION, Defendant. The following papers read on this motion for dismissal: Notice of Motion Opposing Papers Reply Papers X X X Upon the foregoing papers it is ordered that defendant s motion for an order dismissing the complaint pursuant to CPLR (a)( 1, 3, 5, & 7) is granted for the reasons hereinafter articulated.

2 The plaintiff, Lisa Pietro, a former employee of the-defendant, Rampart Brokerage Corporation [ Rampart ], commenced the within action to recover fees and commissions. She also seeks recovery of amounts allegedly owed to a now defunct corporation known as Consolidated Risk Solutions, Inc. [ CRS ]. With respect to the latter claim, the complaint alleges that the plaintiff is a shareholder of CRS. Y I It is axiomatic that a shareholder has no individual cause of action to recover damages for a wrong against a corporation, even if that shareholder loses the value of his investment or incurs personal liability in an effort to maintain the solvency of the corporation (Abrams v Donati, 66 NY2d 95 l). (Elenson v Wax, 215 AD2d 429, see also, Lama Holding Company v Smith Barney Inc., 88 NY2d 413,424; Fischbein v Beitzel, 281 AD2d 167, Iv den 96 NY2d 715; cf., Barbour v Knecht, 296 AD2d 218,228 [lst Dept.]) Here, while the complaint is an amalgam or hodge podge of plaintiffs personal claims, [and] claims derivative in nature (Barbour v Knecht, supra, at 228), the first and third causes of action are clearly predicated upon contract claims belonging exclusively to the corporate entity - CRS - since these claims allege breach of purported oral agreements between Rampart and CRS relating to, inter alia, Rampart s failure to forward a list of potential clients to CRS and

3 Rampart s failure to pay for certain management fees owed to CRS. (see, Cmplt.,T[T 7-12, 19-28) Moreover, and contrary to the plaintiffs contentions, a reading of the complaint, together with the relevant facts alleged in the plaintiffs opposing affidavit (Pietro Aff., 7 13), establishes that the second cause of action is founded upon yet another oral agreement between Rampart and CRS, pursuant to which for one year and thereafter, until CRS, itself, could fund the salary payments (Cmplt.,l 14) In any event, assuming arguendo, that the individual plaintiff can be viewed as a party to this oral agreement, any personal recovery thereon is defeated by the plaintiffs December, 1997 resignation letter, in which the plaintiff, upon leaving Rampart, represented as follows: I have no claims against Rampart, and Rampart has no obligations or liabilities to me * * *. The Court, having afforded the plaintiff the benefit of every favorable inference that can reasonably be drawn from the pleadings (see, Sokoloff v Harriman Estates Development Corp., 96 NY2d 409,414), is nonetheless constrained to conclude that plaintiffs fourth cause of action, which is predicated on a memorandum agreement dated January 19, 1998, also fails to state a cause of action against Rampart.

4 Significantly, the subject agreement identifies Rampart principal, Arnold Skolnick, and the plaintiff as the operative contracting parties. Indeed, the agreement contains a provision in which both parties represented that they understood that Rampart * * * is not a party to this agreement * * *. Moreover, the relevant provisions of the agreement obligate Skolnick - not Rampart - to make the comrnission payments the plaintiff now seeks to recover. _ President, Stanley Morris, and does state that Rampart would perform certain accounting functions to facilitate Skolnick s payments to the plaintiff, the gravamen of the fourth cause action is that the payments and commissions promised by Skolnick were never made. (see, Cmplt.,TT 34-35) Significantly, plaintiff does not allege that Rampart failed to perform the various accounting or computer functions addressed therein. Accordingly, to the extent that any recovery is due and owing under the subject agreement, the plaintiffs remedy is to proceed against the individual who is asserted to have agreed to make the payments sought, i.e., Arnold Skolnick. The Court notes that the plaintiff has already commenced an action on the agreement against Arnold Skolnick. As to the fifth cause of action, the complaint makes only a conclusory reference to a producer agreement of unspecified date between Rampart and the

5 plaintiff, and then alleges, without supporting or explanatory facts, that the agreement required Rampart to pay certain fees, which have yet to be paid. (see, Cmplt.,yT 40-44) Notably, vague and conclusory allegations are insufficient to sustain a breach of contract cause of action (Fowler v American Lawyer Media, Inc., AD2d_, _NYS2d_, 2003 NY AppDiv, LEXIS 6645; see, generally, bare legal conclusions are not entitled to * * * the presumption of truth * * *. (Morris v Morris, AD2d_,_NYS2d_, 2003 NY AppDiv LEXIS 7382) The inconclusive factual averments and bare legal conclusions comprising the fifth cause of action fall short of establishing compliance with the foregoing pleading requirements. Lastly, the bare-boned sixth cause of action alleging unjust enrichment, incorporates by reference the preceding allegations and then merely asserts, without explanatory and/or particularized supporting averments, that Rampart has been unjustly enriched by failing to the pay the plaintiff for her services. (see, Cmplt.,Tf 45-47) Assuming that these vague allegations could support any cognizable claim (cf., Negron v New York Medical College, 277 AD2d 292,293), the Court has already reviewed the preceding foundational contentions presumably relied upon,

6 and determined that no sustainable theories of recovery have been set forth. This concludes all proceedings under index DATED: July 23,2003 xxx