The following papers, numbered 1-11 were considered on this motion to dismiss for lack of personal jurisdiction and cross-motions for summary judgment, to change venue, and to deem service proper. [*2]

PAPERSNUMBERED

Notice of Motion/Order to Show Cause, — Affidavits — Exhibits1, 2

Answering Affidavits — Exhibits ________________________________8, 9

Replying Affidavits10, 11

Cross-Motion:[ X ] Yes[ ] No3, 4, 5, 6, 7

Upon the foregoing papers, it is ordered that this motion is decided as indicated below.

Plaintiff Rebecca Bassin-Schneider commenced this personal injury action against the defendants, seeking damages for injuries resulting from an alleged trip and fall, which occurred on August 16, 2008, at 1 Broadway Plaza, Elmsford, New York (Premises). On December 13, 2011, plaintiff served the summons and complaint on defendants Cross Westchester Realty Associates L.P. and Cross Westchester Realty Associates L.L.C. (CW Entities).

Defendants CW Entities now move to: (1) dismiss the complaint pursuant to CPLR 3211(a)(5) and (a)(8) on the grounds that plaintiff failed to effectuate service within the statutory period; and (2) dismiss all cross-claims against defendants CW Entities, as the court does not have personal jurisdiction over them. Defendants William Stutler (Stutler) and Robert Funking (Funking), Evening Out, Inc. d/b/a Westchester Broadway Theater (Evening Out), and Westchester Broadway Theatre (Westchester), jointly cross-move for: (1) summary judgment dismissing this action and all cross claims against defendants Stutler and Funking, for failure to state a cause of action; and (2) a change of venue, as venue is not proper in New York County, or, alternatively, based on the convenience of the witnesses. Plaintiff cross-moved for an order deeming plaintiff to have duly served the Summons with Notice and Verified Complaint upon defendants CW Entities, or alternatively, granting plaintiff 30 days to serve defendants CW Entities.

Preliminarily, this court must determine whether it has personal jurisdiction over defendants CW Entities. Such defendants assert that service, while effectuated on the Secretary of State, is nonetheless defective given that plaintiff's proof of service misidentified the CW Entities as "unauthorized foreign entities", rather than a domestic limited liability company and a limited liability partnership. See Notice of Motion, Exh. K, Affidavits of Service, dated December 14, 2011.

Section 303(a) of the New York Limited Liability Company Law provides, in pertinent part, that "[s]ervice of process on the secretary of state as agent of a domestic limited liability company or authorized foreign limited liability company shall be made by personally delivering to and leaving with the secretary of state...duplicate copies of such process. ... Service of process on such limited liability company shall be complete when the secretary of state is so served." See also Revised Limited Partnership Law § 121-109(a). "[S]ervice of process on a corporation is [*3]deemed complete when the Secretary of State is served, regardless of whether such process ultimately reaches the corporate defendant." Cedeno v Wimbledon Bldg. Corp., 207 AD2d 297, 298 (1st Dep't 1994).

Here, it is uncontested that defendants CW Entities are domestic entities, and that plaintiff properly served two copies of the Summons and Verified Complaint on the Secretary of State. However, defendants CW Entities argue that plaintiff's affidavits of service misidentify defendants CW Entities as "unauthorized foreign entities," and that plaintiff failed to effectuate service in accordance with statutes governing service on unauthorized foreign entities. The New York Limited Liability Company Law § 303(a) and the Revised Limited Partnership Law § 121-109(a) deems service complete upon the service of duplicate copies on the Secretary of State. While the affidavit of service may have been improperly executed, this is not a jurisdictional defect where, as here, service was, in fact, properly made. See Morrissey v Sostar, S.A., 63 AD2d 944, 945 (1st Dep't 1978). "[D]efects go to form and not jurisdiction and they may be amended so as to have the record conform to the true facts." Air Conditioning Training Corp. v Pirrote, 270 AD 391, 393 (1st Dep't 1946). As to any defects in the proof of service, plaintiff proffers an amended affidavit indicating that service on defendants CW Entities was made pursuant to the Revised Limited Partnership Law § 121-109(a). Despite the initial incorrect affidavits of service, the undisputed facts establish proper service. Thus, defendants CW Entities' motion to dismiss must be denied, and plaintiff's motion is granted to the extent that service is deemed duly served on the defendants CW Entities.

Defendants Stutler, Funking, Evening Out, and Westchester's Motion

Plaintiff commenced this action, naming defendants Stutler and Funking in their individual capacities, and designated New York County as the place of trial based on the allegation that such defendants resided in New York County, at the time the action was commenced. Defendants Stutler and Funking (Individual Defendants), Evening Out, and Westchester cross-move for summary judgment dismissing all claims against the Individual Defendants for failure to state a cause of action.^[FN1]

The standards of summary judgment are well settled. Summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). "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 to eliminate any material issues of fact from the [*4]case". Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure...to do [so]". Zuckerman v City of New York, 49 NY2d 557, 560 (1980).

Here, plaintiff is suing the Individual Defendants in their individual capacity. Personal liability may be imposed on a corporate officer for misfeasance or malfeasance. However, personal liability cannot be imposed on a corporate officer for nonfeasance. See Peguero v 601 Realty Corp., 58 AD3d 556, 559 (1st Dep't 2009). Under an alternative theory of liability known as "piercing the corporate veil", corporate officers can be held personally liable for actions purportedly taken on behalf of the corporation, so long as the plaintiff alleges: (1) facts that, if proved, indicate that the officer exercised complete domination and control over the corporation; and (2) facts indicating that the domination and control resulted in some type of fraud, malfeasance or injustice. East Hampton Union Free School Dist. v Sandpebble Builders, Inc., 16 NY3d 775, 776 (2011). Here, plaintiff's complaint is devoid of any statements alleging fraud, misconduct or abuse of the corporate form committed by the Individual Defendants. Plaintiff also fails to allege any causal link between her injuries and any alleged act or conduct of the Individual Defendants.

Without citing any legal authority, plaintiff attempts to justify the inclusion of the Individual Defendants in this action by stating that "plaintiff is not trying to pierce the corporate veil..., [r]ather, plaintiff named STUTLER and FUNKING as defendants because they are the principals of defendant EVENING OUT, INC. [who] were and/or may have been personally responsible for, and involved in, the circumstances which caused plaintiff's accident". See plaintiff Bassin-Schneider Cross-Motion, ¶ 167. This argument is unavailing. It is axiomatic that a corporate officer is not liable for the negligence of the corporation merely because of his official relationship to it, and it must be shown that the officer was a participant in the wrongful conduct that caused plaintiff's injury. WorldCom, Inc. v Segway Marketing Ltd., 262 AD2d 164, 164 (1st Dep't 1999).

In plaintiff's 79 page, 349 paragraph complaint, mostly comprised of boilerplate allegations, plaintiff only makes one vague reference to each of the Individual Defendants' conduct as it relates to the cause of action. Specifically, plaintiff alleges that both of the Individual Defendants "perform[ed] certain work and/or did provide certain services at the premises . . . negligently, inadequately, insufficiently and/or otherwise improperly." See Stutler, Funking, Evening Out, and Westchester's Cross-Motion, Exh. A, Verified Complaint, ¶¶ 32 and 63. In addition to the lack of specificity and the conclusory nature of the allegation, plaintiff fails to allege that the "work" or "service" performed by the Individual Defendants had any causal link to plaintiff's injuries. In the absence of a single allegation that wrongful conduct by either of the Individual Defendants caused plaintiff's injuries, plaintiff has failed to state a cause of action against such defendants. Thus, defendants Stutler, Funking, Evening Out, and Westchester have established entitlement to summary judgment as a matter of law.

In opposition to the instant motion for summary judgment, plaintiff proffers only an attorney's affirmation. "[A] bare affirmation of ... [an] attorney who demonstrated no personal knowledge ... is without evidentiary value and thus unavailing." Zuckerman v City of New York, [*5]49 NY2d 557, 563 (1980). Furthermore, an affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 (1st Dep't 1981), aff'd 54 NY2d 715 (1981). Thus, plaintiff's attorney's conclusory and speculative affirmation, is insufficient to raise any factual issues to warrant a denial of the within motion. See GTF Mktg., 66 NY2d at 968. The Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat a motion for summary judgment. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978). As such, plaintiff has failed to raise a genuine issue of fact sufficient to deny the instant summary judgment motion.

Moreover, even if the Court considers the affirmation by plaintiff's attorney, plaintiff does not contest the factual deficiencies in the complaint with regard to the Individual Defendants. Rather, plaintiff argues that "discovery is necessary in order to determine the precise nature of STUTLER's and FUNKING's role in the accident and relationship to EVENING OUT INC." See plaintiff Bassin-Schneider Cross-Motion, ¶ 170. Plaintiff alleges that discovery might uncover information which would indicate that defendants Stutler and/or Funking, by act or omission, caused plaintiff's injury. On this point, the case law is also clear. A plaintiff "will not be allowed to use pretrial discovery as a fishing expedition when it cannot set forth a reliable factual basis for what amounts to at best, mere suspicions." Chappo & Co., Inc. v Ion Geophysical Corp., 83 AD3d 499, 500-501 (1st Dep't 2011). Plaintiff has failed to raise a genuine issue of fact, and thus, defendants Stutler, Funking, Evening Out, and Westchester's motion for summary judgment to dismiss the complaint for failure to state a cause of action is granted, as to the Individual Defendants.

Defendants Stutler, Funking, Evening Out, and Westchester also move for a change of venue, pursuant to CPLR §503(a), CPLR §510, and CPLR §511, on the grounds that venue is not proper in New York County, or alternatively, pursuant to CPLR §510(3), for the convenience of material witnesses and in the interest of justice. In seeking to change the venue of this action, defendants argue that: (1) because the Individual Defendants are improper parties to this action, venue cannot be based on their alleged New York County residence; and (2) even if the Individual Defendants are proper parties to this action, at the time of the incident and, currently, they reside outside of New York County.

Venue is proper in any county where one of the parties resided when the action was commenced. CPLR §503(a). For a corporation, residency is in the county where the corporation's principal office is located. CPLR §503(c). CPLR §510 provides that a court has discretion to change venue when: (1) the county designated is not proper; (2) an impartial trial is unlikely in the designated county; or (3) the convenience of material witnesses and the ends of justice will be promoted by the change. "Where venue is placed on the basis of naming an improper party, a motion to change venue should be granted upon the dismissal of that party." Crew v St. Joseph's Medical Center, 19 AD3d 205, 206 (1st Dep't 2005) (internal citations omitted). In this case, the Individual Defendants are improper parties, as plaintiff failed to allege any facts that would, if proved, justify holding the defendant corporate officers personally liable for the torts or obligations of the corporation. Thus, venue cannot be based on the alleged [*6]residence of these improper defendants ^[FN2]. Defendants Stutler, Funking, Evening Out, and Westchester's argue that venue should be based in Westchester County, as defendant Evening Out, and defendants CW Entities, have their principal place of business in Westchester County. Further, plaintiff's alleged trip and fall occurred in Westchester County. As plaintiff designated the venue of this action, based on improper parties, defendants Stutler, Funking, Evening Out, and Westchester's motion is granted to the extent that venue is changed to Westchester County.

Accordingly, it is hereby

ORDERED that defendants CW Entities' motion to dismiss is denied in its entirety; and it is further

ORDERED that plaintiff's motion is granted to the extent that defendants CW Entities are deemed duly served; and it is further

ORDERED that defendants Stutler, Funking, Evening Out, and Westchester's motion for summary judgment is granted, and the complaint is dismissed as to defendants Stutler and Funking; and it is further

ORDERED that defendants Stutler, Funking, Evening Out, and Westchester's motion to change venue is granted; and it is further

ORDERED that the venue of this action is changed from the Supreme Court, County of New York, and the Clerk of that Court is directed to transfer the papers on file in this action to the Clerk of the Supreme Court, County of Westchester, upon service of a certified copy of this order with notice of entry and payment of appropriate fees, if any, and such service shall be made within 45 days of entry; and it is further

ORDERED that, the Court of Supreme Court, Westchester County, upon receipt of a copy of this order with notice of entry, shall, without further fee, assign a Westchester County index number to the file transferred pursuant to this order; and it is further

ORDERED that within 30 days of entry of this order, defendants Evening Out and Westchester shall serve a copy upon all parties with notice of entry.

This constitutes the decision/order of the Court.

Dated:April 19, 2013

DORIS LING-COHAN, J.S.C.