Defendants move for an order pursuant to C.P.L.R. § 3211 dismissing the complaint against defendants Zohar Zauber and David Ettedgui on the grounds that the complaint fails to set forth a cause of action against said defendant; together with such other and further relief as to this Court may seem just and proper. [*2]

Plaintiff, CHARLES LOVE owns and resides at 540 Hinsdale Street, Brooklyn, New York 11207. Plaintiff contends that on or about May 7, 2004, defendant, REBECCA INC., became the owner of the property known as 542 Hinsdale Street, Brooklyn, New York (hereinafter "542 Hinsdale Street") which is adjacent to plaintiff's property. Plaintiff further alleges upon information and belief that the treasurer of REBECCA INC., is defendant, DAVID ETTEDGUI. Plaintiff contends that on or about August 2, 2004, defendant, HOME BUYERS INC., held itself out as the owner of 542 Hinsdale Street in an application to the Building Department of City of New York. Plaintiff further asserts that the president/secretary of defendant HOME BUYERS INC., is defendant, DAVID ETTEDGUI. Plaintiff alleges that on or about October 19, 2004, construction was commenced at 542 Hinsdale Street, by the defendant MAX ENTERPRISES, LLC who was engaged as the contractor responsible for this construction and a sign was erected at the construction site stating that the defendant, REBECCA DEVELOPMENT INC., was the owner of the property. Plaintiff contends that defendant REBECCA DEVELOPMENT INC., is a fictitious entity that never existed as a corporation under the laws of the State of New York or any other state. According to plaintiff, on or about May 26, 2005, the defendant, ZOHAR ZAUBER held himself out as the owner of 542 Hinsdale Street in a certificate of correction filed with the Building Department of the City of New York. Plaintiff contends that on or about July 21, 2005, the defendant, REBECCA INC., transferred ownership of 542 Hinsdale street to the defendant HOMES 2 BUY INC., for no consideration. Plaintiff argues that defendant ZOHAR ZAUBER is the president of both REBECCA INC., and HOMES 2 BUY INC. and that REBECCA INC., became an inactive corporation and is undercapitalized. According to plaintiff, defendants REBECCA INC., HOMES 2 BUY INC, and HOME BUYERS INC., all have offices at 147-26 Hillside Avenue, Jamaica, New York, New York and upon information and belief the sole officers directors and shareholders are the defendants ZOHAR ZAUBER and DAVID ETTEDGUI. Plaintiff alleges upon information and belief the aforesaid transfer was undertaken after damage to the plaintiff's property had commenced. Plaintiff states that the current owners of 542 Hinsdale Street, Brooklyn, New York are the defendants IDERLE B. AMEDEE & FRED D. AMEDEE. Plaintiff further contends that defendants, jointly and severally while in the course of construction at 542 Hinsdale Street, have caused extensive damage to Plaintiff's adjacent building and property, including but not limited to damage to the walls, the roof, the foundation, and the structure of the Plaintiff's building, as well as damage to the Plaintiff's sidewalk, fence, and rain gutter. Plaintiff further asserts that defendants also removed part of the plaintiff's metal fence, damaging the fence and erected additional fencing on Plaintiff's property, without permission and blocking entrance to Plaintiff's land. It is also alleged that defendants built their building several feet too close to Plaintiff's building, taking away Plaintiff's land and Plaintiff's easement. According to plaintiff, his entire easement right and privilege on the southern side of his property was taken by Defendant's construction [*3]and building. Additionally, plaintiff contends that approximately eight (8) inches of his actual property was encroached upon and taken by the construction and building and the encroachment on both Plaintiff's land and the easement spans the entire length of the Defendant's building and construction site.

On August 10, 2005, plaintiff commenced an action against MAX ENTERPRISES, L.L.C. and REBECCA DEVELOPMENT INC. Defendant REBECCA DEVELOPMENT INC. never appeared in the action. On February 16, 2006, the plaintiff's attorney and the attorney for defendant MAX ENTERPRISES, L.L.C. stipulated that plaintiff could amend the complaint, as to defendant MAX ENTERPRISES, L.L.C. to address new legal issues. On September 26, 2006, plaintiff moved for a default judgment against defendant REBECCA DEVELOPMENT INC. By notice of motion dated December 16, 2006, plaintiff moved for leave to serve a supplemental summons and second amended complaint to include REBECCA DEVELOPMENT, INC., HOMES 2 BUY, INC., HOME BUYERS INC., ZOHAR ZAUBER, DAVID ETTEDGUI, IDERLE B. AMEDEE AND FRED D. AMEDEE. In the fifth Cause of action of the amended complaint, plaintiffs asert that the individual defendants ZOHAR ZAUBER and DAVID ETTEDGUI are the sole officers, directors and shareholders of the defendant corporations and exercise complete dominion and control over them. Plaintiff alleges upon information and belief that listing REBECCA DEVELOPMENT INC., as the owner of 542 Hinsdale, when in fact it was not, "was intentionally designed to obfuscate the true owner of the property in order to avoid any liability for wrongs perpetrated by the negligent and improper construction undertaken at 542 Hinsdale." The complaint further states that the individual defendants transferred 542 Hinsdale "from REBECCA INC., to HOME 2 BUY INC., and then rendered REBBECA INC., assetless and inactive in order to avoid any liability for any wrongs perpetrated by the negligent and improper construction". Plaintiff contends that it should be permitted to pierce the corporate veil of the corporate defendants in order to obtain all of the relief sought in the complaint.

The moving defendants assert that plaintiff has failed to allege a cause of action for piercing the corporate veil. The defendants allege that in order to obtain the drastic relief sought, plaintiffs must allege and prove that the owners exercised complete domination of the corporation in respect to the transaction attacked and that such domination was used to commit a fraud or illegal acts against plaintiff which resulted in injury to plaintiff. Defendants contend that plaintiff has failed to allege the elements for a cause of action for fraud. Defendant alleges that the complaint contains numerous pleading deficiencies with respect to allegations of fraud and the factual basis for piercing the corporate veil. Defendants also seek to have plaintiff's sixth cause of action which seeks reasonable attorneys fees dismissed. [*4]

Plaintiff argues that plaintiff is not required to plead actual fraud in order to pierce the corporate veil but only that the individual defendant s control of the corporate defendant was used to perpetrate a wrongful or unjust act toward the plaintiff. Plaintiff contends that it has properly pled a cause of action and is entitled to pierce the corporate veil. Plaintiff asserts that the individual defendants exercised dominion and control over the corporations and used them interchangeably in connection with the subject premises. Plaintiff asserts that the subject premises was transferred for no consideration after plaintiff's property had already been damaged and as a result of the transfer, the corporation that purportedly owned the premises became inactive and undercapitalized thereby rendering any judgment that plaintiff might obtain unenforceable.

Generally, on a motion to dismiss for failure to state a cause of action, the court must accept the factual allegations made in the complaint to be true and in order for the claim to survive, the court must find from the four corners of the complaint that those factual allegations manifest a cause of action cognizable at law (see Davis v. CCF Capital Corp., 277 AD2d 342 [2nd Dept. 2000]). In ruling on a motion to dismiss, the court affords the claimant every possible favorable inference and accepts as true not only the facts alleged in the complaint but also any submission in opposition to the motion (see 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144 [2002]). Contrary to defendants' assertions, plaintiff need not plead a claim of fraud to make a cause of action for piercing the corporate veil. To successfully pierce the corporate veil, a third party must show 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 plaintiff's injury" (Old Republic Nat. Title Insurance Company v. Moskowitz, 297 AD2d 724, 725 [2nd Dept. 2002]). Consequently, viewing the pleadings and submissions in a light most favorable to plaintiff, I find that plaintiff has sufficiently pled a cause of action for piercing the corporate veil. Plaintiff's pleadings allege that the individual defendants exercised complete dominion over the corporation "to commit a wrong" against plaintiff which caused him injury. However, with respect to the latter part of defendant's motion, the defendants argue correctly that plaintiff has failed to allege any statutory authority or contractual agreement under which he would be entitled to attorney's fees. Consequently, defendants are entitled to dismissal of plaintiff's sixth cause of action which seeks recovery of attorney's fees.

Accordingly, that portion of defendants' motion which seeks an order dismissing the complaint against defendants ZOHAR ZAUBER and DAVID ETTEDGUI individually on the grounds that the complaint fails to sate a valid cause of action against them is denied. That portion of defendants' motion which seeks to dismiss plaintiff's sixth cause of action which seeks the recovery of attorney's fees is granted and the sixth cause of action is severed and dismissed. [*5]

This constitutes the decision and order of the court.

Enter:

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LAURA L. JACOBSON, JSC.