Moon v. Owadeyah

204 N.Y.S.3d 141

223 A.D.3d 793

Kyung Hee MOON, etc., appellant,

v.Herzel OWADEYAH, et al., defendants third-party plaintiffs-respondents, et al., defendants;

YJ Construction, Inc., et al., third-party defendants-respondents.

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 7, 2023

January 24, 2024

Kelner and Kelner, New York, NY (Gail S. Kelner of counsel), for appellant.

Gallo Vitucci Klar LLP, New York, NY (Andrew C. Kaye of counsel), for defendants third-party plaintiffs-respondents.

Linda A. Stark, New York, NY, for third-party defendants-respondents.

COLLEEN D. DUFFY, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, CARL J. LANDICINO, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Queens County (Thomas D. Raffaele, J.), dated September 11, 2018. The order, insofar as appealed from, denied the cross-motion of the plaintiff and Ssang Jun Ma pursuant to CPLR 3025(b) for leave to amend the complaint and granted that branch of the motion of the defendants third-party plaintiffs which was for summary judgment dismissing the complaint insofar as asserted against the defendant third-party plaintiff Herzel Owadeyah.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

Ssang Jun Ma, a brick layer employed by the third-party defendants, allegedly was injured when a scaffold upon which he was walking collapsed while he was working on a construction project at premises owned by the defendants Omid Rahmani and Shirley Bassiri Rahmani. Ssang Jun Ma, by his guardian, and Kyung Hee Moon, suing derivatively, commenced this action alleging, inter alia, violations of Labor Law §§ 200, 240(1), and 241(6) and common-law negligence, against, among others, Kensington Homes, LLC (hereinafter Kensington Homes), the general contractor on the project, and Herzel Owadeyah, a principal of Kensington Homes. Owadeyah and Kensington Homes moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against Owadeyah. Ssang Jun Ma and Kyung Hee Moon cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint to add allegations against Owadeyah so as to impose personal liability against him under a theory of piercing the corporate veil. The Supreme Court, inter alia, denied the cross-motion for leave to amend the complaint and granted that branch of the motion of Owadeyah and Kensington Homes which was for summary judgment dismissing the complaint insofar as asserted against Owadeyah. Ssang Jun Ma and Kyung Hee Moon appealed from the order. Ssang Jun Ma subsequently died, and Kyung Hee Moon, as administrator of the estate of Ssang Jun Ma, was substituted for the deceased appellant.

[1] "Leave to amend a pleading shall be freely given absent prejudice or surprise resulting directly from the delay unless the proposed amendment is palpably insufficient or patently devoid of merit" (Ruland v. Leibowitz, 209 A.D.3d 1051, 1052, 176 N.Y.S.3d 716 [internal quotation marks omitted]; see CPLR 3025[b]; Johnson v. Ortiz Transp., LLC, 205 A.D.3d 696, 698, 165 N.Y.S.3d 735).

[2, 3] "In order for a plaintiff to state a viable claim against a shareholder of a corporation in his or her individual capacity for actions purportedly taken on behalf of the corporation, plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation and abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice" (East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 16 N.Y.3d 775, 776, 919 N.Y.S.2d 496, 944 N.E.2d 1135 [internal quotation marks omitted]; see Matter of Morris v. New York State Dept. of Taxation & Fin., 82 N.Y.2d 135, 141, 603 N.Y.S.2d 807, 623 N.E.2d 1157). "While complete domination of the corporation is the key to piercing the corporate veil, especially when the owners use the corporation as a mere device to further their personal rather than the...