Upon a reading of the foregoing cited papers, the Decision and Order on this motion is as follows:

This is an action to recover for breach of contract, quantum meruit, unjust enrichment and fraudulent misrepresentation concerning the cancelled sale of two vehicles and partial return of payment. The defendants make this motion in lieu of an answer to dismiss this action pursuant to CPLR §3211(a)(7),CPLR §3211(a)(1), CPLR §327 and improper venue or forum non conveniens.

The plaintiff opposes the motion claiming there is privity of contract, proper venue in this action, and the defendants papers are insufficient.

A motion to dismiss pursuant to CPLR § 3211 (a) (7) requires a reading of the pleadings to determine whether a legally recognizable cause of action can be identified and it is properly [*2]plead. A cause of action does not have to be skillfully prepared but it does have to present facts so that it can be identified. Allegations made in a complaint are to be deemed true (See, Guggenheimer v. Ginzberg, 43 NY2d 268, 372 NE2d 17 [1977], Frank v. DaimlerChrysler, 292 AD2d 118, 741 NYS2d 9 [NYAD, 1st, 2002], Rovello v. Orofino Realty Co., 40 NY2d 643, 389 NYS2d 314, 357 NE2d 17 [1976] and Sanders v. Winship, 57 NY2d 391, 442 NE2d 1231, 456 NYS2d 720 [1982]).

The defendant Louis Solecito is claiming that this action cannot be maintained against him as an individual because the complaint fails to allege any facts concerning his direct involvement in the contract, or that he made any fraudulent representations in the transactions.

The officers of a corporation may be held personally liable for torts committed on behalf of the corporation, but cannot be held personally liable on contracts provided that they did not bind themselves individually. A claim of fraud is properly dismissed if the complaint fails to allege the individual defendant made any representations with the required scienter (See, Westminister Construction Company v. Sherman, 160 AD2d 867, 554 NYS2d 300 {N.Y.A.D. 2nd Dept. 1990] and Lichtman v. Mount Judah Cemetery, 269 AD2d 319, 705 NYS2d 23 [N.Y.A.D. 1st Dept. 2000]).

Louis Solecito states in his affidavit that he did not negotiate the sale of the vehicles

or make any representations to the plaintiff. The complaint does not allege that he personally benefitted from the alleged retention of funds. He claims he did not speak to the plaintiff concerning the rescinded sale. The plaintiff has not asserted causes of action regarding liability for a tort. The defendant Louis Solecito has provided a basis to dismiss this action against him as an individual pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

A motion to dismiss pursuant to CPLR § 3211 (a) (1) on the ground that the action is barred by documentary evidence, requires the Court to construe every fact plaintiff has alleged as true. The party making a motion to dismiss must produce documentary evidence that, "utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." (See, Leon v. Martinez, 84 NY2d 83, 638 NE2d 511, 614 NYS2d 972 [1994], AG Capital Funding Partners, L.P. v. State Street Bank and Trust Co., 5 NY3d 582, 842 NE2d 471, 808 NYS2d 573 [2005] and Goshen v. Mutual Life Ins. Co., 98 NY2d 314, 774 NE2d 1190, 746 NYS2d 858 [2002] ).

The defendants claim that there is no privity of contract between the plaintiff and the defendants. The two Porsche Cayenne vehicles alleged to be purchased in February of 2010 were sold to Bosco L.L.C., as purchaser.^[FN1] The defendants claim that plaintiff's name does not appear anywhere on the purchase agreement.^[FN2] The defendants provide a copy of the license to do business [*3]for Bosco, L.L.C. showing that it is registered in Alaska and claim that it is an out of state entity not authorized to maintain an action, suit, or proceeding in New York.^[FN3]

A member of a limited liability company may not bring an action as an individual on his own behalf for a wrong committed against the entity. The only action that may be brought by an individual on behalf of the limited liability company is a derivative action (See, General Motors Acceptance Corp. v. Kalkstein, 100 AD2d 102, 474 NYS2d 493, [N.Y.A.D 1st Dept., 1984], Tzolis v. Wolff, 10 NY3d 100, 884 NE2d 1005, 855 NYS2d 6 [2008] and Wallace v. Perret, 28 Misc. D 1023, 903 N.Y.S. 888 [Sup. Ct. Kings, 2010]).

The plaintiff has not established he is authorized by Bosco L.L.C., to bring this action for breach of contract. The plaintiff has also not established that as an individual he is a proper party to this action. There is insufficient proof of privity of contract between the parties to this action. The printout of a wire transfer for the funds used to purchase the vehicles dated February 25, 2010 does not provide the name of the individual or entity associated with the account, only that it confirmation was e-mailed to the plaintiff.^[FN4] The defendants have established a basis to dismiss this action pursuant to CPLR 3211(a)(7).

The defendants have provided a basis to dismiss this action, there is no need to address their claims concerning forum non conveniens.

Accordingly, the defendants motion to dismiss is granted. The complaint is dismissed

This constitutes the Decision and Order of the Court.

Dated: November 18, 2010