Pathe Laboratories, Inc. v. Vidicam Corp.

282 A.D. 1026, 126 N.Y.S.2d 889, 1953 N.Y. App. Div. LEXIS 5712

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 1953
• Status: Published

Opinion

In this appeal by Vidicam Corporation from denial of its motion to dismiss the cross complaint of Television Features, Inc., as not authorized by section 264 of the Civil Practice Act, the order of Special Term is reversed and the motion granted, but without prejudice to the bringing of an independent action on the same allegations. The cross complaint is unrelated to the issues raised in the original complaint in this action (since settled). In brief, the cross complaint seeks the balance of the agreed price for which the business was sold. It is only incidental that payment of the full price would have placed Television Features, Inc., in sufficient funds so that the original plaintiff might have been saved from damage resulting from an alleged violation of the Bulk Sales Law. No costs. Settle order on notice. In this appeal by Television Features, Inc., and Larry Gordon from denial of their motion to dismiss the setoff and cross complaint of Vidicam Corporation, for legal insufficiency, the order of Special term is reversed and the motion granted, but without prejudice to Vidicam Corporation to replead its alleged cause of action in another action either as a complaint, or as a counterclaim, as it may be advised. The allegations designed to permit proof to justify disregarding of the corporate entity are too general and conclusory. Merely to allege that Vidicam’s debtor is the sole stockholder and creditor of Television is insufficient. The further allegation that Television is Gordon’s “ alter-ego ” is conclusory in the absence of ultimate facts establishing the conclusion. No costs. Settle order on notice. Present — Peck, P. J., Dore, Cohn, Breitel and Bastow, JJ. [See 283 App. Div. 708.]