By notice of motion, sequence number two, filed on February 14, 2007, defendant Israel Zaltz (Zaltz), Martin Weinberger (Weinberger) and 1070 MS LLC, jointly move pursuant to CPLR § 3212 for an order of summary judgment dismissing plaintiffs' complaint for failure to state a cause of action.

By notice of motion, sequence number five, filed on June 15, 2007, plaintiffs Anthony Austin and Juliette Wong (hereinafter Austin and Wong or plaintiffs) jointly move pursuant to CPLR § 3212 for an order granting summary judgment in their favor against defendants Alex Ragolsky (Ragolsky), Simon Lubarsky (Lubarsky) and AR Estate Consulting, Inc.(AREC).

By notice of motion, sequence number six, filed on June 15, 2007, plaintiffs jointly move pursuant to CPLR §3212 for an order granting summary judgment in their favor against defendants Zaltz, Weinberger and 1070 MS LLC.

By notice of motion, sequence number seven, filed on July 17, 2007, plaintiffs jointly move for leave to amend the title of the two summary judgments motions they had filed on July 15, 2007 (sequence five and six) so as to read "Notice of Cross-Motion" instead of "Notice of Motion."

On July 18, 2005, plaintiffs commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. The complaint contains sixty seven allegations of fact in support of eight causes of action. The first cause of action is premised on the alleged fraudulent misrepresentation by Zaltz, Weinberger and 1070 MS LLC of the nature of subject property as a two family home in the contract of sale with the plaintiffs. The second cause of action is for their [*2]breach of the contract of sale by not obtaining a certificate of occupancy for a legal two family dwelling for the subject property. The third cause of action is for their breach of the contract of sale by not performing repairs to the subject property. The fourth cause of action is for their breach of an agreement by not removing the Environmental Control Board violations on the subject property. The fifth cause of action is against Ragolsky, Lubarsky and AREC for their negligent performance in the appraisal of the subject property. The sixth cause of action is against Barrister Land Services, Inc. (hereinafter BLS) and Fidelity National Title Insurance Company (hereinafter FNT) for their negligent performance of a search for encumbrances on the subject property. The seventh and eighth causes of action are against BLS and FNT pursuant to their insurance coverage protecting the plaintiffs for any encumbrances that may affect title to the subject property.

The motion papers of Zaltz, Weinberger and 1070 MS LLC, sequence number two, consist of an affirmation of Israel Zaltz, a memorandum of law, and six annexed exhibits. Exhibit A is an incomplete residential contract of sale for the subject property. The contract apparently contains twenty eight consecutively numbered provisions but the exhibit does not include the page containing provisions number fourteen through and including twenty three. The contract is followed by an undated rider, a document labeled schedule A and an unexplained lead paint disclosure form. Exhibit B is a one page document which purports to be a certificate of occupancy search for the subject property. The bottom of the document states that further information is continued on the next page, however, the next page is not included. Exhibit C purports to be a document from the New York City Department of Buildings pertaining to work permits for the subject property. Exhibit D is an escrow agreement pertaining to the sale of the subject property. Exhibit E are four letters from Mr. G. Alexander Novak, the movants' counsel, addressed to Steven C. Okewa, plaintiffs' counsel. Exhibit F is a copy of the summons and verified complaint of the instant action; the verified answer with counterclaims of Zaltz, Weinberger and 1780 MS, LLC, the plaintiffs' answer to the counterclaims, and the verified answer of defendants, BLS and FNT. Although Zaltz stated in paragraph twenty of his affirmation that the note of issue in the instant case is attached as part of the pleadings in exhibit F, it was not attached.

In reply to plaintiffs' opposition, Zaltz submitted another affirmation to which he annexed filling receipts for the corporate defendant.

Plaintiffs Austin and Wong's motion sequence number five:

The motion papers of Austin and Wong, sequence number five, consist of an affirmation of their counsel^[FN1], the affidavit of Austin and six annexed exhibits. Exhibit A is an incomplete residential contract of sale for the subject property. The contract contains at least twenty three consecutively numbered provisions but does not include the page containing provisions number six through thirteen. There is no page containing any provisions numbered after twenty three [*3]and no page containing the signature of either the vendor or vendees. There is also no rider or schedule A attachment. Exhibit B purports to be a three page excerpt of the deposition transcript of plaintiff Austin. Exhibit C is an appraisal report of the subject property prepared by Lubarsky. Exhibit D is a letter to Steven Okenwa from Domenick Neglia which provides a field review and appraisal report for the subject property. Exhibit E is a copy of a $450.00 check from plaintiff Wong to AREC. Exhibit F is the cover page of Rogolsky's deposition transcript without the transcript itself. Plaintiffs's counsel in paragraph sixteen of his affirmation referred to exhibit F as the deposition transcripts of Rogolsky. It is apparent that counsel intended to include Rogolsky's deposition transcripts and is unaware that he failed to do so.

Plaintiffs also submitted a supplemental affirmation of their counsel and an affidavit of a real estate appraiser in opposition to motion sequence number two and in support of their motion.

Plaintiffs Austin and Wong's motion sequence number six:

The motion papers of Austin and Wong, sequence number six, consist of an affirmation of their counsel^[FN2], the affidavit of Anthony Austin and five annexed exhibits. Exhibit A is a residential contract of sale for the subject property. The contract contains at least twenty three consecutively numbered provisions but does not include the page containing provisions number six through thirteen. There is no page containing any provisions numbered after provision number twenty three. There is a two page rider and a lead paint disclosure form. There is no schedule A attachment. Exhibit B purports to be a three page excerpt of the deposition transcript of Zaltz. Exhibit C purports to be a thirteen page excerpt of the deposition transcript of Austin. Exhibit D is a letter to Steven Okenwa from Domenick Neglia which provides a field review and appraisal report for the subject property. Exhibit E purports to be a one page excerpt of the deposition transcript of Zaltz.

Plaintiffs Austin and Wong's motion sequence number seven:

The motion papers of Austin and Wong, sequence number seven, consist of an affirmation of their counsel, and two annexed exhibits. Exhibit A and B are copies of plaintiffs' motion papers, sequence number five and six, in the exact form that those papers were served on all parties. Each annexed motion received by the parties is entitled "Notice of Cross-Motion" Plaintiffs counsel affirms that the motions papers for sequence number five and six as filed with the court were inadvertently labeled as "Notice of Motion' instead of "Notice of Cross Motion." He further averred that this error was the only difference between the set of papers sent to the parties and the set filed with the court.

Parties on the Motion

Plaintiffs Austin and Wong are residents of Kings County and the vendees of a contract of sale for certain real property known as 1070 Prospect Place, Brooklyn, New York. 1070 MS LLC is a corporation duly organized and existing under the laws of the State of New York and the owner and vendor of the subject property. Zaltz is the president and Weinberger is a shareholder of 1070 MS LLC. AREC is in the business of providing real property appraisal services. [*4]Ragolsky and Lubarsky are employees of AREC. Fidelity National Title Insurance Company was the title insurance provider for the subject premises. Barrister Land Services, Inc., is an abstract company licensed to do business in the state of New York and hired by plaintiffs to conduct searches for any encumbrances on the subject property.

The court will deal with each motion in sequence order. Zaltz, Weinberger and 1070 MS LLC do not provide information on when a note of issue has been filed in this action as part of motion sequence number two. Nor did they annex either a preliminary conference order or any other court order directing the time limits for filing a motion for summary judgment. This information is crucial in determining whether their motion or any other motion for summary judgment is timely in accordance with Rule 13 of the Uniform Civil Term Rules for Kings County and CPLR § 3212(a).

Zaltz submits an affirmation instead of an affidavit contending that his religion prohibits him from swearing. There is no affidavit from Weinberger and no affirmation from counsel in support of the motion. Zaltz contends that he, as a corporate officer, and Weinberger as a shareholder of 1070 MS LLC, cannot be held liable for the actions of the corporation, whether or not there was a breach of the contract of sale. He further contends that, in accordance with the terms of the contract of sale between 1070 MS LLC and the plaintiffs, that he, Weinberger and the corporation did not breach the terms of agreement. He then makes certain allegation of facts pertaining to the certificate of occupancy and work permits for the subject property, and pertaining to the terms of an escrow agreement at the closing of the subject property.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to eliminate any material issues of fact from the case (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). Once the moving party has established entitlement to summary judgment, to defeat the motion, the opposing party must raise triable issues of fact (Gravina v. Wackschal, 255 AD2d 291 [2nd Dept 1991]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the sufficiency of the opposing papers (Ayotte v. Gervasio, 186 AD2d 963 [3rd Dept. 1992]).

As previously indicated, the movants did not submit the complete contract of sale. In the absence of same, they can not establish as a matter of law, that either Zaltz, Weinberger or 1070 MS LLC complied with its terms since not all terms are set forth. Zaltz and Weinberger's claim no personally liable for any acts constituting an alleged breach of the contract of sale by 1070 MS LLC, premised on their role as mere corporate agents.

While the law permits the incorporation of a business for the very purpose of escaping personal liability (Ventresca Realty Corp. v. Houlihan, 41 AD3d 707, 708 [2nd Dept 2007] citing, Bartle v. Home Owners Coop., 309 NY 103,106 [1955]), equity will intervene to pierce the corporate veil and permit the imposition of personal liability in order to avoid fraud or injustice.

The decision whether to pierce the corporate veil in a give instance depends on the particular facts and circumstances (Ventresca Realty Corp. v. Houlihan, 41 AD3d 707, 708 [2nd Dept 2007] citing, Weinstein v. Willow Lake Corp., 262 AD2d 634, 643 [2nd Dept. 1999]).

A party seeking to pierce the corporate veil must establish that "(1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in the [*5]plaintiff's injury"(Millenium Construction., LLC v. Loupolover, 44 AD3d 1016 [2nd Dept 2007]). "The party seeking to pierce the corporate veil must further establish that the controlling corporation abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against that party such that a court in equity will intervene"(Millenium Construction., LLC v. Loupolover, 44 AD3d 1016 [2nd Dept 2007] citing Matter of Morris v. New York State Depart. of Taxation & Fin., 82 NY2d 142 [1993]). The mere claim that the corporation was completely dominated by the owners, or conclusory assertions that the corporation acted as their "alter ego," without more, will not suffice to support the equitable relief of piercing the corporate veil (Goldman v. Chapman, 44 AD3d 938, 939-940 [2nd Dept 2007])

On a motion to dismiss, the allegations of the cause of action must be deemed true and given every fair inference (Lakehill Associates, Inc. v. 6077 Jericho Turnpike, 18 AD3d 506, 508 [2nd Dept.]). Only the first four causes of action on the complaint are against Zaltz, Weinberger and 1070 MS LLC. The complaint alleges that each of these defendants committed act of fraudulent misrepresentation and engaged in conduct that breached the contract of sale agreement. Plaintiffs do not specifically claim in their verified complaint that 1070 MS LLC was the alter ego of Zaltz and Weinberger. Nor do they claim that Zaltz and Weinberger abused the corporate form to perpetrate a wrong against them. In fact, plaintiffs' allegations of fact do not limit or premise there cause of action against Zaltz and Weinberger to a theory of piercing of the corporate veil. Rather, they claim individual liability premised on individual torts committed by each of the defendants.

Zaltz claims that he and Weinberger were acting as corporate agents of 1070 MS LLC and may not be held liable as such. "It is well settled that a cause of action for fraud consists of four elements: (1) misrepresentation of a material fact, (2) scienter, (3) justifiable reliance, and (4) injury or damages (Hennessey v. General Acc. Ins. Co. Of America, 257 AD2d 750, 752 [3rd Dept 1999]). A claim of fraudulent misrepresentation speaks to a mental state to deceive by the misrepresenting party and thus necessarily involves an element of scienter. Zaltz, the only party offering an affirmed statement, is not competent to offer evidence of the mental state of Weinberger on the claim of fraudulent misrepresentation. Zaltz stands behind the shield of corporate immunity to claim that the causes of action for breach of contract may not be maintained against him and Weinberger. However, there is no sworn allegation of fact from Weinberger demonstrating that all his relevant transactions were performed as a corporate agent. Additionally, Zaltz did not address the claim that he committed acts of fraudulent misrepresentation in his individual capacity.

Based on the aforementioned deficiencies in Zaltz, Weinberger and 1070 MS LLC's motion papers, their joint motion for summary judgment dismissing the complaint must be denied.

The court now turns to plaintiffs' motion sequence number five and six in which plaintiffs' move for summary judgment finding liability in their favor against defendants Zaltz, Weinberger and 1070 MS LLC, in sequence number five, and against Rogolsky, Lubarsky and AREC, in motion sequence number six.

A motion for summary judgment shall be supported by of the pleadings (CPLR § Rule 3212[b]). "The pleadings" means "a complete set of the pleadings" (Wider v. Heller, 24 AD3d 433 [2nd Dept 2005], or "all the pleadings."(Welton v. Drobniki, 298 AD2d 757 [3rd Dept 2002]) [*6]Plaintiffs Austin and Wong have not included a copy of the pleadings in either of their motions for summary judgment under motion sequence numbers five and six. Defendants Zaltz, Weinberger and 1070 MS LLC and defendants Rogolsky, Lubarsky and AREC have opposed the motions. Based on plaintiffs' failure to include the pleadings, they have failed to meet their initial burden, thereby obviating any issue as to the sufficiency of the papers submitted in opposition thereto (Welton v. Drobniki, 298 AD2d 757 [3rd Dept 2002]).

Although none of the defendants raised this deficiency in opposition to the motions sequence number five and six, the requirement of a complete set of pleadings is mandatory and exists for the benefit of the court. Accordingly, the motions must be denied on this basis alone (Thompson v. Foreign Cars Center, Inc. et al., 40 AD3d 965 [2nd Dept 2007]; see also Matsyuk v. Konkalipos, 35 AD3d 675 [2nd Dept 2006]). The denial, however, is without prejudice to renewal (Green v. Wood, 6 AD3d 976 [3rd Dept. 2004] citing Welton v. Drobniki, 298 AD2d 757 [3rd Dept 2002]) assuming the instant motion was timely.

The question of timeliness of the plaintiffs' motions touches upon the next motion, sequence number seven, in which plaintiff's seeks to amend the title to motion sequence number five and six from "Notice of Motion" to Notice of Cross-Motion".

Defendants Zaltz, Weinberger and 1070 MS LLC oppose the application and contend that the two summary judgment motions are untimely. In order to demonstrate that the motions were untimely, however, defendants had to establish that it was made beyond the time limit set forth in a prior court order or beyond the time limit set forth by CPLR §3212(a). As previously indicated, the defendants did not include a copy of the note of issue or of any court order pertaining to time frames for issuing such motions. Defendants therefore cannot demonstrate that the motions are untimely. It is noted, that plaintiffs sought to amend the title from "Notice of Motion" to "Notice of Cross-Motion" based on the concern that if the motions were not treated as a cross-motion, they may not be timely.

The application to amend the title is granted pursuant to CPLR §2001. As previously indicated the court noted that the affirmations of counsel in support of these two motions referred to them as cross-motions. The misnaming of the title is a defect or irregularity of no consequence and may be disregarded. It is of no consequence because the motion was brought while the court was still considering Zaltz, Weinberger and 1070 MS LLC presumed timely motion for summary judgment (see James v. Jamie Towers Housing Inc. 294 AD2d 268, 272 [1st Dept 2002] citing Rosa v. R.H. Macy Co., 272 AD2d 87 [1st Dept. 2000]). It is therefore deemed timely as well and is denied for the reasons already set forth herein.

The foregoing constitutes the decision and order of this court.

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J.S.C.