Opinion
2012-04-10
BROADWAY WATERVIEW, LLC, etc., Plaintiff–Appellant, v. BAINTON, McCARTHY & SIEGEL, LLC, Defendant–Respondent.
Itkowitz & Harwood, New York (Jay B. Itkowitz of counsel), for appellant. Bainton McCarthy LLC, Rockville Centre (John G. McCarthy of counsel), for respondent.
Itkowitz & Harwood, New York (Jay B. Itkowitz of counsel), for appellant. Bainton McCarthy LLC, Rockville Centre (John G. McCarthy of counsel), for respondent.
ANDRIAS, J.P., FRIEDMAN, ACOSTA, FREEDMAN, RICHTER, JJ.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered June 16, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiff landlord's motion for leave to amend the complaint to add additional defendants and new causes of action sounding in alter ego and successor liability, and under the Debtor and Creditor Law, unanimously affirmed, with costs.
In this action to recover rent arrears allegedly owed by defendant limited liability company, the motion court properly exercised its discretion in denying the motion, as the proposed amended pleadings lack merit ( see 360 W. 11th LLC v. ACG Credit Co. II, LLC, 90 A.D.3d 552, 553, 935 N.Y.S.2d 289 [2011]; see also Sepulveda v. Dayal, 70 A.D.3d 420, 421, 893 N.Y.S.2d 549 [2010] ). None of the proposed individual defendants, former partners of defendant, were signatories to the original lease, and thus they cannot be held liable for the rent arrears ( see Matias v. Mondo Props. LLC, 43 A.D.3d 367, 367–368, 841 N.Y.S.2d 279 [2007]; American Theatre for the Performing Arts, Inc. v. Consolidated Credit Corp., 45 A.D.3d 506, 846 N.Y.S.2d 60 [2007]; Limited Liability Company Law § 609[a] ). In addition, the proposed amendments asserting that, after hiring defendant's partners, the proposed defendant law firm became responsible for the rent arrears under the theory of successor liability fail as a matter of law, as there was no showing that the firm expressly or impliedly assumed defendant's contractual liability, that there was a consolidation or merger of defendant and the firm, that the firm was a mere continuation of defendant, or that a transaction was entered in order to fraudulently escape rent obligations ( see Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 464 N.Y.S.2d 437, 451 N.E.2d 195 [1983]; Nationwide Mut. Fire Ins. Co. v. Long Is. A.C., Inc., 78 A.D.3d 801, 801–802, 912 N.Y.S.2d 226 [2010] ). Plaintiff failed to raise a triable issue as to continuity of management merely by alleging that the firm hired defendant's former partners ( see Kretzmer v. Firesafe Prods. Corp., 24 A.D.3d 158, 159, 805 N.Y.S.2d 340 [2005] ).
We have reviewed plaintiff's remaining arguments and find them unavailing.