The following papers were read on Plaintiff's motion for leave to enter a default judgment against Defendants:

Notice of Motion dated October 18, 2006;

Affidavit of Ronald S. Tucker sworn to on October 5, 2006;

Affirmation of James Klatsky, Esq. dated September 28, 2006.

Plaintiff Tucker Family Trust ("Trust") moves for leave to enter a default judgment against the Defendants. [*2]

On November 16, 2005, Trust agreed to sell 100,000 shares of Commodore International Corp. for $1.50 per share. The agreement was confirmed in by e-mail sent by Ron Tucker ("Tucker"), settlor of Trust, to Phil Kerewich ("Kerewich") on November 16, 2005. Kerewich is alleged to be Defendant Terence Taylor's brother-in-law. Terence Taylor ("Taylor") is alleged to be the principal officer, director and shareholder of Defendant Tomahawk Trading Corp. ("Tomahawk").

On November 17, 2005, Kerewich sent an e-mail to Tucker indicating the stock was to be transferred to Tomahawk Trading Corporation, Pension Financial, DTCNo. xxxx, Benefit of Tomahawk Trading Corp. Acct# xxxxxxxx".

In response to that e-mail, Tucker sent Kerewich an e-mail containing instructions for wiring the funds to purchase the stock.

On November 21, Tucker directed Commodore's transfer agent to transfer the stock to Tomahawk. On December 3, 2005, the stock was transferred to Tomahawk.

Although the stock has been transferred to Tomahawk, Trust has not received the agreed payment for the shares.

Trust commenced this action seeking to recover the purchase price of the stock $150,000 from Taylor and Tomahawk.

CPLR 3215 permits a party to obtain a default judgment against a defendant who defaults in appearance. An application for leave to enter a default judgment must be supported by proof of service of the summons and complaint, an affidavit made by a person with actual knowledge of the facts surrounding the claim and proof of the default. CPLR 3215(f). See, Siegel, New York Practice 4th §295. The party seeking a default judgment must establish the existence of a prima facie cause of action against the defaulting party. Joosten v. Gale, 129 AD2d 531 (1st Dept. 1987).

Service was made upon Taylor on May 11, 2006 by personally delivering a copy of the summons and complaint to him. (CPLR 308[1]). Service was made upon Tomahawk, a domestic corporation, by serving a copy of the summons and complaint upon Taylor on May 11, 2006 (CPLR 311[a][1]). Thus, Plaintiff has established that service has been properly made upon each of the Defendants.

Defendants had twenty days from the date of service to appear in the action

(CPLR 320[a]). More than twenty days have passed since the Defendants were served. Neither of the Defendants has appeared, answered or moved. Their time to appear has not been extended by stipulation or order. The Defendants are in default.

The complaint alleges two causes of action against each Defendant; to wit: breach of contract and unjust enrichment.

Plaintiff has established a prima facie case of breach of contract against Tomahawk. See, Furia v. Furia, 116 AD2d 694 (2nd Dept. 1986). Therefore, Plaintiff is entitled to enter judgment against Tomahawk for the sum of $150,000.

Plaintiff has not, however, established a cause of action for breach of contract against Taylor. None of the e-mails that form the basis of this transaction were from or to Taylor. The only allegations in the complaint regarding Taylor relate to his status as a shareholder, officer and/or director of Tomahawk. In fact, the only relationship Taylor had to transaction appears in footnote 1 of the affidavit submitted by Tucker in support of the motion which states that the e-[*3]mails for Taylor were sent to Kerewich at Kerewich's direction. As best as the Court can determine, Taylor had no direct involvement in the transaction.

A corporate officer will not be held personally liable for the corporation's breach of a contract unless he or she personally binds him or herself thereto. Metropolitan Switch Board Co., Inc. v. Amici Assocs., Inc., 20 AD3d 455 (2nd Dept. 2005); and Maranga v. McDonald & T. Corp., 8 AD3d 351 (2nd Dept. 2004). Nothing in the record before this Court establishes that Taylor personally agreed to pay for the shares. In fact, nothing in the record indicates that Taylor even had knowledge of this transaction.

Since Plaintiff has failed to establish a prima facie case against Taylor, leave to enter a default judgment against him must be denied. See, Martocci v. Bowaskie Ice House, LLC, 31 AD3d 1021 (3rd Dept. 2006).

Since Trust has successfully pressed its breach of contract cause of action against Tomahawk, it cannot maintain the claim against Tomahawk for unjust enrichment. See, Clark-Fitzpatrick v. Long Island Rail Road Co., 70 NY2d 382, 389 (1987). See also, Battery Park Realty, Inc. v. RKO Delaware, Inc., 18 AD3d 690 (2nd Dept. 2005); and Cooper, Bamundo, Hecht, & Longworth, LLP v. Kuczinski, 14 AD3d 644 (2nd Dept. 2005).

To the extent the second cause of action seeks to recover for unjust enrichment from Taylor, Trust has failed to plead a prima facie cause of action. To establish such a cause of action, plaintiff must establish that defendant received money or property from the plaintiff that, in good conscience and equity, defendant should not be permitted to retain. Wiener v. Lazard Freres & Co., 241 AD2d 114 (2nd Dept., 1998); and Bello v. New England Financial, 3 Misc 3d 1109(A) (Sup.Ct. Nassau Co. 2004).

Trust has failed to establish that Taylor received the stock or anything else of value that he should not be permitted in good conscience to retain.

Accordingly, it is,

ORDERED, that Plaintiffs' motion for leave to enter a default judgment against the Defendants is granted to the extent of granting Plaintiff leave to enter a default judgment against the Defendant Tomahawk Trading Corp., and, in all other respects is denied; and it is further,

ORDERED, that the County Clerk is directed to enter a judgment in favor of the Plaintiff, Tucker Family Trust, and against the Defendant, Tomahawk Trading Corp., in the sum of $150,000 together with interest from December 3, 2005 and costs and disbursements as taxed by the Clerk; and it is further,

ORDERED, that, on the Court's own motion, the action against the Defendant Terence Taylor is dismissed without prejudice.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

January 18, 2007Hon. LEONARD B. AUSTIN, J.S.C.

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