Opinion
November 19, 1970
Order, Supreme Court, New York County, entered August 13, 1969, denying motion for summary judgment, unanimously reversed on the law, the motion granted, and the clerk is directed to enter partial summary judgment in favor of plaintiff in the sum of $40,091.40 and to sever those portions of the complaint on which partial summary judgment has been granted, with costs. Appellant shall recover of respondent $50 costs and disbursements of this appeal. The trial of the remaining issues may proceed. In our view the issues in the complaint for goods sold and delivered are separable from the issues presented on the counterclaims. Moreover, the opposing affidavit, which we find wholly deficient in form and substance, and inadequate to defeat the requested relief, admits there is owing for the merchandise a balance in the sum of $40,091.40. And we find no basis for a piercing of the veil of the respective corporations as a basis for denial of partial summary judgment. The mere fact that there was a close working relationship between the defendant and plaintiff corporations is insufficient to allow a disregard of their legally separate and distinct entities, particularly where there is no evidence to warrant the conclusion that one corporation completely dominates the finances, policy and business of the other, and where it affirmatively appears, without challenge, that plaintiff maintained its own separate assets, employees and means of production, and was not a mere agent, instrumentality, or alter ego of the corporate defendant or the Rosenberg family. ( Berkey v. Third Ave. Ry. Co., 244 N.Y. 84; Cameron Equip. Corp. v. People, 31 A.D.2d 299; Lowendahl v. Baltimore Ohio R.R. Co., 247 App. Div. 144, affd. 272 N.Y. 360; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 31 F.2d 265; 11 N Y Jur., Corporations, § 15.) Thus, the court, in proper exercise of discretion may enter partial summary judgment although there may exist remaining counterclaims to be tried. (See CPLR 3212, subd. [e]; 5012; 4 Weinstein-Korn-Miller, N Y Civ. Prac., par. 3212.09; Dalminter, Inc. v. Dalmine S. p. A., 29 A.D.2d 852, affd. 23 N.Y.2d 653.)
Concur — Eager, J.P., McGivern, Tilzer and Macken, JJ.