The Amended Complaint sets forth five (5) causes of action — (1) against Defendant Cohen and Adrenaline Marketing and Promotions Inc. ("Adrenaline") for goods sold and delivered by the plaintiff to said defendants at the agreed upon value of $317, 294.87 ^[FN1], (2) against the same two defendants for the same amount based on unjust enrichment or quantum meruit; (3) again against the same two defendants on an account stated in the same amount for damages; (4) also against the same defendants for punitive damages in the amount of $5,000,000.00 for fraudulent misrepresentations relating to a good credit standing and a scheme to defraud with no intention to pay for the goods; and (5) against all the defendants for fraud by inducing plaintiff to extend credit to the defendants in which goods were then diverted to their customers without payment to the plaintiff.

The defendant Cohen answered the Amended Complaint by denial of the material allegations and affirmative defenses of failure to state a cause of action; lack of jurisdiction because defendant is not a domestic corporation and is not authorized to do business in this State; and that the action is barred by the Statute of Frauds. Defendant Cohen also asserted a cross claim against the defendant Adrenaline demanding indemnification if warranted.

On or about August 26, 2009, Plaintiff moved for an order of default against the two corporate defendant's based upon their failure to attend court conferences, and such application was granted without opposition as per the Court's order dated November 6, 2009. On or about October 21, 2009 Defendant Cohen was given time to move for summary judgment, as Plaintiff had still yet to appear for a deposition. Finally, the action has since been discontinued against defendant Dana Messina, leaving only Defendant Cohen.

Defendant Cohen now moves for summary judgment dismissing plaintiff's complaint on the grounds that: (1) there is neither a legal nor a factual basis upon which the Plaintiff has a cause of action against Defendant Cohen as an individual; (2) there are no allegations that the corporate Defendants were not legitimate corporate entities or that Defendant Cohen acted ultra vires; (3) Plaintiff has failed to allege or provide any evidence that Defendant Cohen abused the privilege of doing business in a corporate form in order to defraud the Plaintiff and make him individually liable; (4) Plaintiff has failed to allege or provide any evidence that Defendant Cohen agreed to be personally responsible for payment on behalf of the corporate defendants; and (5) Plaintiff cannot [*3]offer testimony contrary to the documentation Plaintiff provided in response to Defendant Cohen's Notice for Discovery and Inspection as precluded by a July 22, 2009 Order, where the Court stated that "all depositions shall be held by August 26, 27, & 28 and shall be completed no later than August 31, 2009 or parties shall be precluded." In Plaintiff's response to Defendant Cohen's Notice for Discovery and Inspection Plaintiff conceded that Defendant Cohen was a shareholder of the corporate defendant, Plaintiff never received any checks from Cohen, and all invoices were addressed to the corporate defendant; leaving no question of fact for the Court's determination, thus the court should grant Defendant Cohen summary judgment as a matter of law.

Plaintiff opposes the motion and submits an affirmation of counsel, an affidavit by Elisa Lecce ("Lecce") who is the operations manager of the plaintiff, and Examination Before Trial testimony from Defendant Cohen. Plaintiff argues that: (1) Defendant Cohen is guilty of spoliation of evidence as to the corporate records he maintained for Adrenaline as allegedly shown in his Examination Before Trial when he testified upon Adrenaline moving out of its office that some things were left for the landlord to clean out such as crashed computers, leaving plaintiff in a tough position to prove Defendant Cohen's lies; (2) Lecce extended more favorable credit terms due to Defendant Cohen's alleged misrepresentations that Adrenaline was solvent; had a good credit rating; sufficient cash flow to finance its own operations; would timely pay its bills; and that Adrenalines customers purchasing Lecce products were actively and timely paying Adrenaline, supplying excellent cash flow, and (3) Defendant Cohen personally promised to pay Lecce as soon as he received the proceeds from the sale of Lecce Pens from his customers.

In reply, Defendant Cohen submits an affidavit and, an affirmation from his counsel. Defendant Cohen contends that he was merely an officer of Defendant Adrenaline, that there are no allegations contained in either the Complaint or the Verified Complaint that he was in any way personally responsible for payment, guaranteed payment, or that he was masking his conduct by hiding behind a fraudulent corporation, and that these allegations are new and outside the four corners of the Complaint and should not be considered by the Court. Thus, Defendant Cohen urges the Court to grant summary judgment dismissing the complaint.

In the case at bar, the Court finds that defendant has met its initial burden of demonstrating the absence of any material fact in each of the causes of action in the Complaint, and plaintiff has failed to satisfy its burden to come forward with proof in admissible form demonstrating there are genuine issues of material fact which preclude granting summary judgment for the defendant.

Initially, with regard to the first three causes of action seeking recovery for goods sold and delivered, plaintiff has failed to present any admissible evidence as to why Defendant Cohen should be responsible for payment. Rather, Plaintiff has conceded in response to Defendant Cohen's Notice for Discovery and Inspection that Defendant Cohen was merely a principal shareholder and officer of the corporate defendant, Plaintiff never received any checks from Cohen, and all invoices were addressed to the corporate defendant. The Second Department has recently reaffirmed the general principle that a corporation exists independent of its owners who are not personally liable for its obligations. East Hampton Union Free School District v. Sandpebble Builders, Inc., 66 AD3d 122, 884 NYS2d 94 (2d Dept. 2009). In that case, the court recognized that:

The concept of piercing the corporate veil is an exception to this general rule, permitting

in certain circumstances, the imposition of personal liability on owners for the

obligations of their corporation. A plaintiff seeking to pierce the corporate veil must

demonstrate that a court in equity should intervene because the owners of the corporation

exercised complete domination over it in the transaction at issue and, in doing so, abused

the privilege of doing business in the corporate form, thereby perpetrating a wrong that

resulted in injury to the plaintiff.

Id. In this case, as in Sandpebble, Plaintiff has failed to assert that Defendant Cohen acted other than in his capacity as principal shareholder and officer of Adrenaline Marketing and Promotions Inc. Instead, the allegations of the Complaint that Defendant Cohen caused plaintiff to contract with defendant Adrenaline demonstrated that Defendant Cohen was acting solely in his corporate capacity on behalf of the entity. Such is wholly insufficient to entitle plaintiff to pierce the corporate veil.

Further, with regard to the fourth and fifth causes of action asserting fraudulent misrepresentations and inducement of fraud by both Corporate Defendant Adrenaline Marketing and Promotions Inc., and Defendant Cohen; plaintiff has failed to neither distinguish between the two defendants as aforementioned, nor make any factual allegations sufficient to support each element of a cause of action for fraud.

To state a claim for fraud, a plaintiff must allege "a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the [*5]other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury." Lama Holding Co. v. Smith Barney, 88 NY2d 413, 421 (1996). CPLR 3016 requires that these elements of fraud be pleaded in detail. Salles v. Chase Manhattan Bank, 300 AD2d 226, 235 (1st Dept 2002). To survive a motion to dismiss, the complaint must make factual allegations sufficient to support each element of a cause of action for fraud. Kaufman v. Cohen, 307 AD2d 113 (1st Dept 2003).

According to the complaint, the fraudulent representations allegedly made by defendants to plaintiff were made leading up to and following the execution of the agreement, with the intent to continue the agreement with plaintiff without making payments. All plaintiffs are doing is alleging that defendants never intended to follow the verbal and written representations that they made in connection with making payments under the agreement, which does not create an independent basis for a cause of action for fraud. Sommer v. Federal Signal Corp., 79 NY2d 540, 552 (1992). Furthermore, fraudulent intent not to perform a promise cannot be inferred from the mere nonperformance of that promise; additional proof is required. Brown v. Lockwood, 76 AD2d 721, 732-733 (2d Dept 1980).

Based on the foregoing, Defendant Cohen's motion for summary judgment dismissing the complaint is granted in its entirety.

Submit judgment.

This constitutes the DECISION and ORDER of the Court.

Dated: July 27, 2010

Riverhead, New York

EMILY PINES

J. S. C.