Opinion
April 14, 1993
Appeal from the Supreme Court, Erie County, Fudeman, J.
Present — Denman, P.J., Green, Balio, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted summary judgment dismissing the complaint against defendant O'Mara. The record shows that the acts about which plaintiff complains were committed solely by defendant Biondolillo while he was an officer of defendant Buffalo General Agency, Inc. and O'Mara did not participate in those acts nor did he have actual knowledge of them (see, Marine Midland Bank v Russo Produce Co., 50 N.Y.2d 31, 44; Ecuador Importadora-Exportadora Cia v ITF [Overseas] Corp., 94 A.D.2d 113, 116-117).
Furthermore, with reference to the "Sixteenth" cause of action in plaintiff's proposed second amended complaint, the record demonstrates that O'Mara did not use "control of the corporation to further his own rather than the corporation's business" (Walkovszky v Carlton, 18 N.Y.2d 414, 417). Additionally, he is not liable for the acts of Biondolillo upon the principle of respondeat superior. Thus, because the allegation in the proposed second amended complaint with respect to piercing the corporate veil concerning O'Mara plainly lacks merit, Supreme Court properly denied leave to amend insofar as that amendment named O'Mara as a party defendant (see, Mathiesen v Mead, 168 A.D.2d 736, 736-737; Weider v Skala, 168 A.D.2d 355).