Recitation, as required by CPLR §2219(a), of the papers considered on the review of Lyonel F. Paul, M.D. (the Plaintiff)’s motion for leave to file an amended complaint and Billy Hans Ford, M.D. (Dr. Ford)’s motion to dismiss.PAPERS/NUMBEREDNotice of Motion and Affidavits and Exhibits Annexed 1Notice of Cross Motion and Affidavits and Exhibits Annexed 2Answering Affidavits 3 & 4Replying Affidavits 5Sur-Reply Affidavits Upon the foregoing cited papers, the Decision/Order on this motion is as follows:The Plaintiff’s motion for leave to file an amended complaint is denied as plaintiff’s evidence in support of its motion is palpably insufficient as a matter of law and Dr. Ford’s cross motion to dismiss is granted in its entirety as he never signed the obligation.THE FACTS RELEVANT TO THE MOTION AND CROSS MOTIONThe Plaintiff commenced this action for conversion, unjust enrichment, breach of contract and account stated against Ultimate Anesthesia, PLLC. (Ultimate; Dr. Ford and Ultimate, collectively, the Defendants) and Dr. Ford for failure to compensate the Plaintiff for work performed during the period from January 2013 through July 2013 in connection with an Agreement for the Provision Anesthesia Services (the Agreement), dated ___________, by and between Ultimate and the Plaintiff pursuant to which Ultimate was retained as an independent contractor.1The Defendants failed to timely answer the summons and complaint and the Plaintiff moved for a default judgment against Ultimate only. Pursuant to a Decision and Order, dated May 20, 2015, the motion was granted with an inquest to take place at the time of trial.Ultimate moved to vacate the default entered against Ultimate and both of the Defendants moved to permit both of the Defendants to answer and defend the action on the merits. By Decision and Order, dated October 8, 2015, the court denied the branch of the motion requesting that the default entered against Ultimate be vacated but granted the branch of the motion permitting Dr. Ford to file an answer. Thereafter, Dr. Ford filed an answer with a counterclaim alleging breach of contract on the part of the Plaintiff.Dr. Ford then moved for summary judgment to dismiss the Plaintiff’s claims of breach of contract, unjust enrichment, conversion and conversion. By Decision and Order, dated May 3, 2017, the court granted the branch of Ford’s motion for summary judgment dismissing the claims for unjust enrichment and conversion, but denied without prejudice the branch of the motion requesting dismissal as to the claims for breach of contract and conversion as premature pending further discovery to permit the Plaintiff to develop the assertion that Dr. Ford had stripped assets from Ultimate in order to render Ultimate judgment proof.The Plaintiff now moves for leave to amend the complaint to assert claims of piercing the corporate veil of Ultimate to assess liability against Dr. Ford.Leave to amend pleadings is to be freely granted absent prejudice or surprise resulting from delay. CPLR §3025(b). The amendment, however, will be denied if the amended claim fails to state cause of action or is palpably insufficient as a matter of law. Davis & Davis P.C. v. Morson, 286 AD2d 584, 730 N.Y.S.2d 293, 2001 NY Slip Op. 06959 91st Dept. 2001).A cause of action to pierce the corporate veil requires that the owner exercised complete domination over the entity and used that domination to commit a fraud or wrong and it must be supported by particularized allegations. Sheridan Broadcasting Corporation v. Small, 19 AD3d 331, 798 N.Y.S.2d 45, 2005 NY Slip Op. 05531 (1st Dept. 2005); James v. Loran Realty Corp., 85 AD3d 619, 925 N.Y.S.2d 492, 2011 NY Slip Op. 05409 (1st Dept. 2011).The problem with the Plaintiff’s allegations in support of piercing the corporate veil is that the bank records attached to the Plaintiff’s motion as Exhibit 9 are inopposite to its new theory of liability. To wit, it appears as through Ultimate continued to operate out of its account even after it defaulted in this action. For example, on March 20, 2015 (i.e., after Ultimate had defaulted in the action), the bank records show a large deposit of $87,840.16 into Ultimate’s account and although there have been substantial withdrawals, as of April 30, 2017, Ultimate’s account was still open and showed a balance $4,857.69. This irrefutably refutes the claim that there was an effort undertaken by Dr. Ford to render Ultimate judgment proof.Dr. Ford cross moves for summary judgment to dismiss the remaining causes of action for breach of contract and account stated arguing that he only signed the agreement as an officer of Ultimate and not in his individual capacity.In opposition to the cross motion, the Plaintiff asserts that there is an issue of fact as to whether Ford committed fraud by depleting the account of Ultimate in order to render it judgment proof. For the reasons set forth above, this argument is rejected.Accordingly, the Plaintiff’s motion is denied for leave to file an amended complaint is denied and Dr. Ford’s cross motion to dismiss is granted.The Plaintiff is directed to file a Note of Issue or Inquest within twenty days of entry of this order and proceed to inquest against Ultimate in the ordinary course.July 11, 2018
