Morningside Fuel Corp. v. Associated Fuel Oil, Inc.

Appellate Division of the Supreme Court of New York

Morningside Fuel Corp. v. Associated Fuel Oil, Inc.

34 A.D.3d 299, 824 N.Y.S.2d 86

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 14, 2006

StatusPublished

This text of 34 A.D.3d 299 (Morningside Fuel Corp. v. Associated Fuel Oil, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Morningside Fuel Corp. v. Associated Fuel Oil, Inc., 34 A.D.3d 299, 824 N.Y.S.2d 86 (N.Y. Ct. App. 2006).

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Opinion

[300]*300Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered July 18, 2005, which, in an action arising out of the corporate defendant’s (Associated) alleged breach of contract to purchase plaintiff corporation’s assets, denied defendant-appellant’s motion for summary judgment dismissing the complaint as against him, unanimously affirmed, with costs.

Assuming, arguendo, that Associated’s corporate veil could be pierced to reach a nonshareholder (cf Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 142 [1993]; see M&A Oasis v MTM Assoc., 307 AD2d 872, 874 [2003]), we reject that theory of liability because it is not alleged in the complaint and, moreover, is not supported by evidence tending to show the requisite wrongful conduct (see Morris, 82 NY2d at 141, 142; Daily v Catskill Airways, 198 AD2d 643, 644-645 [1993]). Nevertheless, we sustain plaintiffs’ claim against appellant based on the theory that appellant and Associated were joint venturers, on the ground that appellant, whose papers in support of the motion focused on his nonshareholder status and vaguely claimed no “interest” in Associated, failed to make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Concur—Tom, J.P, Andrias, Saxe, Marlow and Nardelli, JJ.

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[300]*300Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered July 18, 2005, which, in an action arising out of the corporate defendant’s (Associated) alleged breach of contract to purchase plaintiff corporation’s assets, denied defendant-appellant’s motion for summary judgment dismissing the complaint as against him, unanimously affirmed, with costs.

Assuming, arguendo, that Associated’s corporate veil could be pierced to reach a nonshareholder (cf Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 142 [1993]; see M&A Oasis v MTM Assoc., 307 AD2d 872, 874 [2003]), we reject that theory of liability because it is not alleged in the complaint and, moreover, is not supported by evidence tending to show the requisite wrongful conduct (see Morris, 82 NY2d at 141, 142; Daily v Catskill Airways, 198 AD2d 643, 644-645 [1993]). Nevertheless, we sustain plaintiffs’ claim against appellant based on the theory that appellant and Associated were joint venturers, on the ground that appellant, whose papers in support of the motion focused on his nonshareholder status and vaguely claimed no “interest” in Associated, failed to make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Concur—Tom, J.P, Andrias, Saxe, Marlow and Nardelli, JJ.

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Bluebook (online)

34 A.D.3d 299, 824 N.Y.S.2d 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morningside-fuel-corp-v-associated-fuel-oil-inc-nyappdiv-2006.

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