In this action for breach of contract, plaintiff seeks $85,995.00 for "work, labor, services, goods and lease" allegedly unpaid by defendant. Defendant moves to dismiss the complaint, pursuant to CPLR 3211(a)(1),(5), and (7), and CPLR 3212, on the grounds that there is no contractual relationship between plaintiff and defendant and that the action is time barred.

In support of its motion, defendant submits an affidavit from Eileen Weingarten, who avers that she is the vice president of the Construction and Design Development Division of defendant, and that she, as representative for non-party entities Atlantic Yards Development Co., LLC and Brooklyn Arena, LLC (hereinafter, the "Project Owners"), which are affiliates of defendant, selected plaintiff to perform asbestos monitoring services. Weingarten claims this relationship between the Project Owners and plaintiff was memorialized in an agreement dated December 19, 2005, a copy of which is attached to her affidavit (the "Agreement"), and that there was no contract entered into between plaintiff and defendant. The letter Agreement is signed by representatives of Atlantic Yards Development Co., LLC, Brooklyn Arena, LLC, and plaintiff. Defendant is not mentioned in the Agreement, although it is listed in the annexed Insurance Rider as one of the entities to be named as additional insureds in the certificates of insurance plaintiff was required to furnish pursuant to the Agreement.

In opposition, defendant argues that a number of cancelled checks issued by defendant to plaintiff raise a triable issue of fact as to whether there was an agreement between the parties. Plaintiff also submits an affidavit from Dr. Francis Owoh, its president and CEO, in which he claims that the second page of the Agreement was falsified, as he has no memory of a provision limiting compensation to plaintiff under the Agreement to $75,000.

Plaintiff's contentions are without merit, as a review of the copies of checks provided by plaintiff reveals that they were issued by "Atlantic Yards Development Co, LLC," one of the Project Owners, not defendant. In fact, there is no mention of defendant anywhere on the checks. [*2]Although Dr. Owoh disputes the authenticity of page two of the Agreement, by stating that he did not "remember seeing the phrase an aggregate sum not to exceed Seventy-Five Thousand Dollars,'" he implicitly acknowledges the legitimacy of the remainder of the Agreement, to which defendant is clearly not a party. Accordingly, plaintiff's cannot maintain a cause of action for breach of contract against defendant since it had no contractual relationship with was not in privity with it (see M. Paladino, Inc. v Lucchese & Son Contr. Corp., 247 AD2d 515, 515 [2d Dept 1998]). Although defendant admits it is an affiliate of the Project Owners, absent a showing of complete dominion and control by one over the other, two separate companies are regarded as distinct legal entities (see Sheridan Broadcasting Corp. v Small, 19 AD3d 331, 332 [1st Dept 2005]). Accordingly, defendant's motion is granted, and plaintiff's complaint is dismissed. In light of the foregoing, it is unnecessary for this Court to address whether the action is time barred.

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HON. CAROLYN E. DEMAREST, J.S.C.