BTM Vtures, Inc. v Pier Partners, LLC 2014 NY Slip Op 32233(U) August 14, 2014 Supreme Court, Ne York County Docket Number: 652483/13 Judge: Manuel J. Mdez Cases posted ith a "30000" idtifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local governmt ebsites. These include the Ne York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.
[* FILED: 1] NEW YORK COUNTY CLERK 08/19/2014 09:53 AM INDEX NO. 652483/2013 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/19/2014 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: MANUEL J. MENDEZ Justice PART 13 -~-- BTM VENTURES, INC., Plaintiff - Against - PIER PARTNERS, LLC, PORT PARTIES, LTD, PORT PARTNERS ON THE HUDSON, LLC, CHARLES NEWMAN, DREW McDOWALL, GARY FISHER AND JEFFREY BANK, Defdant. INDEX N0~ ---6~52=4-'-8"""3='--'--/-'-13=----- MOTION DATE 08-13-2014 MOTION SEQ. NO. ~0~0~1~--- MOTION CAL. NO... - z - 0 <t: C!J z ~~ (.) -...J :::>...J "") 0 0 I- c J: l- 0 >...J...J :::> I- () 0.. <t: (.) z -- 0 l o ~ The folloing papers, numbered 1 to 5 ere read on this motion by defdants Port Parties, LTD, Port Partners on the Hudson LLC, Charles Neman, Dre McDoall, Gary Fisher and Jeffrey Bank to dismiss pursuant to CPLR 3211 (a)(1 )(5)and (7),on documtary evidce, statute of frauds and for failure to state a cause of action. PAPERS NUMBERED Notice of Motion/ Order to Sho Cause - Affidavits - Exhibits... 1-2 Ansering Affidavits - Exhibits --------------~ Replying Affidavits 5 Cross-Motion: D Yes X No Upon a reading of the foregoing cited papers it is Ordered that defdants' Port Parties Ltd, Port Partners on the Hudson, LLC, Charles Neman, Dre McDoall, Gary Fisher and Jeffrey Bank ( hereinafter "defdants") motion for an order pursuant to CPLR 3211 (a)(1 )(5) and (7) dismissing the complaint on documtary evidce, statute of frauds and for failure to state a cause of action as against them is granted, the complaint is dismissed. Defdants' motion for sanctions is died. On or about July 2, 2012 Plaintiff tered into an agreemt ith defdant Pier Partners, LLC, pursuant to hich plaintiff as to provide certain evt managemt, evt planning and marketing services. The agreemt states that it is bete "BTM Vtures, Inc, a Ne York Corporation ( the "company") and Pier Partners LLC, a Ne York Limited Liability Company ( "PPL"}, together "the parties"; has an Integration Amdmt ( at paragraph 11}, and as signed by Barry Mullineaux as presidt of BMT Vtures, Inc., and Charles Neman as Presidt of Pier Partners, LLC. The defdants ere not parties to the agreemt. Plaintiff alleges that the defdants including Pier Partners, LLC, breached the agreemt by failing to pay for the services provided, and commced an action against Pier Partners, LLC and all the defdants. Defdants no moves to dismiss the complaint pursuant to CPLR 3211(a)(1) (5) and (7). Defdants allege that the documtary evidce proves that they ere not part of the agreemt bete the parties, that to the extt plaintiff alleges they assured paymt it falls ithin the statute of frauds and that as to plaintiff's alter ego claims the complaint fails to state a cause of action. 3-4
[* 2] In order to dismiss an action on documtary evidce, the documtary evidce must unequivocally contradict plaintiff's factual allegations and conclusively establish a defse as a matter of la, resolve all factual issues and conclusively dispose of plaintiff's claim ( Gosh v. Mutual Life Insurance Company of Ne York, 98 N.Y.2d 314, 774 N.E.2d 1190, 746 N.Y.S.2d 858[2002); 511 West 232"d Oners Corp., v. Jnifer Realty Co., 98 N.Y.2d 144, 773 N.E.2d 496, 746 N.Y.S.2d 131 [2002J;Fortis Financial Services v. Fimat Futures USA, 290 A.D.2d 383, 737 N.Y.S.2d 40 [1st. Dept. 2002)). The agreemt bete Plaintiff and defdant Pier Partners LLC, conclusively establishes that the defdants ere not a part to this agreemt. Plaintiff's contractual privity as ith Pier Partners LLC and not ith the other defdants. As such the breach of contract action against the defdants must be dismissed. In order to dismiss a complaint for failure to state a cause of action there can be no legally cognizable theory that could be dran from the complaint. The question is hether the complaint gives rise to a cognizable cause of action. The test of the sufficicy of a complaint is hether liberally construed it states in some recognizable form a cause of action knon to the la ( Union Brokerage, inc., v. Dover Insurance Company, 97 A.O. 2d 732, 468 N.Y.S.2d 885 [1st. Dept. 1983)). The sole criterion is hether the pleading states a cause of action, and if from its four corners factual allegations are discerned hich tak together manifest any cause of action cognizable at la, a motion for dismissal ill fail (Quinones v. Schaap, 91 A.O. 3d 739, 937 N.Y.S.2d 262 [2"d. Dept. 2012)). The complaint must be liberally construed, the factual allegations deemed to be true, and the non-moving party granted the befit of every possible favorable inferce. Plaintiff alleges in conclusory fashion that the defdants ere Pier Partners LLC's alter ego and therefore liable on a theory of piercing of the corporate veil. "The alter ego theory is insufficit to support claims for breach of contract against individuals in the absce of specific factual allegations demonstrating fraud or other corporate misconduct or that the individuals in question conducted business in their personal rather than corporate capacity. There are no factors prest here hich ould justify disregarding the corporate structure and piercing the corporate veil ( Feig v. Advance Capital Mgt. Corp., 150 A.D.2d 281, 541 N.Y.S.2d 797 [1st. Dept. 1989)). Plaintiff has failed to plead any facts to substantiate its conclusory claim, and does not sufficitly allege that the corporate form as used to commit a fraud against it ( Albstein v. Elany Construction Corp., 30 A.D.3d 210, 818 N.Y.S.2d 8 [1st. Dept. 2006)). Finally plaintiff argues that defdants orally assured paymt in the evt Pier Partners LLC failed to pay. Defdants dy this and argue that this provision falls ithin the statute of frauds and must be evidced by a riting subscribed by them. "An agreemt by a party to pay sums oed by another ith hich the
[* 3] promisor is not in privity as to that particular agreemt falls ithin the statute of frauds. To satisfy the statute of frauds the promisee must prove a ritt agreemt binding the alleged promisor, ho must have subscribed to it. It is unavailing to argue in the absce of a subscribed riting that the obligation as nevertheless incurred."( l.s. Design, Inc., v. Gasho of Japan International, LTD, 269 A.D.2d 150, 702 N.Y.S.2d 73 [1st. Dept. 2000)). The documtary evidce does unequivocally contradict plaintiff's factual allegations and conclusively establish a defse as a matter of la, conclusively disposing of plaintiff's claim as against the defdants. Similarly plaintiff has failed to sufficitly plead that defdants are Pier Partner's LLC's alter ego arranting piercing of the corporate veil or that they promised to pay Pier Partners LLC's debt to plaintiff. Defdants move for sanctions for plaintiff's failure to voluntarily discontinue the action against the moving defdants. A motion for sanctions under 22 NYCRR 130-1.1 is addressed to the sound discretion of the court and court ill not impose sanctions against a plaintiff's attorney ho advances a legal theory in commcing a suit, or for continuing prosecution of an action here plaintiff, before discontinuing, needs to ascertain the exact relationship of the parties and tities named as defdants ( see Sanders v. Aqua Chlor Enterprises, Inc., 90 A.D.3d 521, 934 N.Y.S.2d 406 [1st. Dept. 2011)). Accordingly, it is ORDERED, that defdants' motion to dismiss the complaint is granted, and it is further ORDERED that defdants motion for sanctions is died, and it is further ORDERED that the complaint is dismissed as to defdants PORT PARTIES LTD, PORT PARTNERS ON THE HUDSON LLC, CHARLES NEWMAN, DREW McDOWALL, GARY FISHER and JEFFREY BANK, and it is further ORDERED that the caption is amded to reflect the dismissal of the defdants, and it is further ORDERED that the ne caption be amded to read as follos: BTM VENTURES, INC., Plaintiff - Against- PIER PARTNERS, LLC, Defdant. And it is further ORDERED that ithin 30 days from the date of this order defdants serve a copy of this order ith notice of try upon the plaintiff, the county clerk and the Geral Clerk's Office( Room 119), ho are directed to mark their records to reflect the dismissal of the parties and amdmt of the caption, and it is further
[* 4] ORDERED that the remaining parties appear for a preliminary conferce in Part 1 3 located at 71 Thomas Street, Room 21 0 Ne York, N. Y., on October 8, 2014 at 9:30 A.M. ENTER: Dated: -~A~u~g"""'u~s~t_1~4~ ~2~0~1~4~- t./.anuel J. MENDEZ ~ J.S.C. ;z_ Manuel J. Mdez J.S.C. c Check one: FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 REFERENCE