Opinion
December 8, 1994
Appeal from the Supreme Court, New York County (Stephen Crane, J.).
The determination by a prior Federal jury that plaintiffs knew of the subject securities purchase for two weeks before the securities were rendered worthless was "specifically resolved" on the merits in the Federal forum after a full and fair opportunity to litigate the issue (Browning Ave. Realty Corp. v Rubin, 207 A.D.2d 263, 267), and was "`actually determined in the prior proceeding'" (Lamontagne v Board of Trustees, 183 A.D.2d 424, 426, lv denied 80 N.Y.2d 759). However, this two-week delay — or even the asserted four-week delay, assuming, arguendo, that that had been the Federal jury's actual determination — is insufficient to warrant a grant of summary judgment to defendants based on their claim that plaintiffs ratified the securities purchase. A claim of ratification "must be determined in the light of all the circumstances" (Gordon v Elder, 253 App. Div. 313, 317), and defendants have failed to establish the "necessary element of * * * intent" (Soma v Handrulis, 277 N.Y. 223, 230).
Defendants' challenge to the second and third causes of action is concededly unpreserved by their notice of appeal, and we therefore do not reach it (Molinoff v Sassower, 99 A.D.2d 528, 529).
Judgment was properly awarded to the defendant parent corporation, as nothing in plaintiffs' pleadings or other papers submitted addresses the necessary elements of piercing the corporate veil: complete domination of the corporation by its owners with respect to the transaction at issue, and use of that domination to commit a fraud or wrong against the party seeking the remedy (Matter of Morris v New York State Dept. of Taxation Fin., 82 N.Y.2d 135, 141). It is not enough for the plaintiffs to request discovery, as they have not made any affirmative showing of a "likelihood" that there is such evidence (Finnerty v Brookhaven Mem. Hosp., 116 A.D.2d 693, 694), nor any demonstration "how further discovery might reveal the existence of" such evidence (Home Sav. Bank v Arthurkill Assocs., 173 A.D.2d 776, 777, lv dismissed 78 N.Y.2d 1071).
Concur — Ellerin, J.P., Kupferman, Williams and Tom, JJ.