Total Facilities Services Corp. v. Biondolillo

192 A.D.2d 1113, 598 N.Y.S.2d 747, 1993 N.Y. App. Div. LEXIS 4138

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted summary judgment dismissing the complaint against defendant O’Hara. The record shows that the acts about which plaintiff complains were committed solely by defendant Biondolillo while he was an officer of defendant Buffalo General Agency, Inc. and O’Hara did not participate in those acts nor did he have actual knowledge of them (see, Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 44; Ecuador Importadora-Exportadora Cia v ITF [Overseas] Corp., 94 AD2d 113, 116-117).

Furthermore, with reference to the "Sixteenth” cause of action in plaintiffs proposed second amended complaint, the record demonstrates that O’Hara did not use "control of the corporation to further his own rather than the corporation’s business” (Walkovszky v Carlton, 18 NY2d 414, 417). Additionally, he is not liable for the acts of Biondolillo upon the principle of respondeat superior. Thus, because the allegation in the proposed second amended complaint with respect to piercing the corporate veil concerning O’Hara plainly lacks merit, Supreme Court properly denied leave to amend insofar as that amendment named O’Hara as a party defendant (see, Mathiesen v Mead, 168 AD2d 736, 736-737; Weider v Skala, 168 AD2d 355). (Appeal from Order of Supreme Court, Erie County, Fudeman, J. — Summary Judgment.) Present — Den-man, P. J., Green, Balio, Lawton and Davis, JJ.