Opinion
10-23-2014
BOARD OF MANAGERS OF the GANSEVOORT CONDOMINIUM, etc., Plaintiff–Respondent, v. 325 WEST 13TH, LLC Defendants, Petro Real Estate Development Corporation, Defendant–Appellant.
D'Agostino, Levine, Landesman & Lederman, LLP, New York (Bruce H. Lederman of counsel), for appellant. Kagan Lubic Lepper Finkelstein & Gold, LLP, New York (Jesse P. Schwartz of counsel), for respondent.
D'Agostino, Levine, Landesman & Lederman, LLP, New York (Bruce H. Lederman of counsel), for appellant.
Kagan Lubic Lepper Finkelstein & Gold, LLP, New York (Jesse P. Schwartz of counsel), for respondent.
Opinion Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered November 29, 2013, which denied Petro Real Estate Development Corporation's motion to dismiss the complaint as against it pursuant to CPLR 3211(a)(1), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against this defendant. Defendant Petro made a prima facie showing that it was not liable for plaintiff's contract claims because it is a separate entity from the sponsor and was not a signatory to the condominium offering plan, declaration or unit purchase agreements. In opposition, plaintiff failed to sufficiently allege that defendant was an alter ego of the sponsor. The allegations, based on information and belief, that the sponsor, a single purpose entity, was undercapitalized, dominated by defendant and intermingled its assets with defendant's, are conclusory and devoid of facts (see 20 Pine St. Homeowners Assn. v. 20 Pine St. LLC, 109 A.D.3d 733, 735, 971 N.Y.S.2d 289 [1st Dept.2013] ; First Sterling Corp. v. Union Sq. Retail Trust, 102 A.D.3d 490, 958 N.Y.S.2d 346 [1st Dept.2013] ; 501 Fifth Ave. Co. v. Alvona LLC, 110 A.D.3d 494, 973 N.Y.S.2d 137 [1st Dept.2013] ; see also Saivest Empreendimentos Imobiliarios E. Participacoes, Ltda. v. Elman Invs., Inc., 117 A.D.3d 447, 450, 985 N.Y.S.2d 54 [1st Dept.2014] ). Under the circumstances, defendant and the sponsor's use of common office space, the same telephone number and the same email account, and defendant's showcasing of the condominium units on its website is relatively insignificant (see Tap Holdings, LLC v. Orix Fin. Corp., 109 A.D.3d 167, 174, 970 N.Y.S.2d 178 [1st Dept.2013] ). Plaintiff's failure to allege that defendant operated through the sponsor as an instrument of wrongdoing is fatal to its alter ego claim (see TNS Holdings v. MKI Sec. Corp., 92 N.Y.2d 335, 339, 680 N.Y.S.2d 891, 703 N.E.2d 749 [1998] ); the allegation that the sponsor transferred all of the unit sale proceeds to defendant is insufficient for this purpose.
We have considered plaintiff's other arguments and find them unavailing.
GONZALEZ, P.J., MAZZARELLI, ANDRIAS, DeGRASSE, CLARK, JJ., concur.