The following electronically filed documents read on this motion by plaintiff for an Order pursuant to CPLR 3212, granting summary judgment in favor of plaintiff:Papers NumberedNotice of Motion-Affidavits-Exhibits-Memo. of Law EF 41-54Affidavit in Opposition-Exhibits EF 55-57Reply Affirmation-Exhibits-Memo. of Law EF 58-62 This is an action to recover damages due to a breach of contract. By way of relevant background, plaintiff sold a number of tires to The Tire Place of Queens, Ltd (Tire Place of Queens), on a credit-account basis. Tire Place of Queens stopped making payments sometime in late 2012 or early 2013. Tire Place of Queens closed in February or March 2013. Thereafter, The Tire Place, LLC (Tire Place) opened in June 2013, in the exact location where Tire Place of Queens operated its business.Plaintiff commenced this action for breach of contract, account stated, unjust enrichment, and successor corporation liable for predecessor by filing a summons and complaint on September 15, 2016. Tire Place joined issue by service of an answer on October 21, 2016. Plaintiff was granted a Judgment against Tire Place of Queens on March 31, 2017 in the amount of $12,728.51. Plaintiff now seeks summary judgment against The Tire Place, LLC on its fourth cause of action sounding in successor corporation liability.Catherine Lombardi appeared for an examination before trial on behalf of Tire Place on July 24, 2018. Ms. Lombardi testified that Tire Place of Queens was opened in 1982 by Frances Gerbino. Mrs. Gerbino’s children, Vincenza Cimino and Vito Gerbino, managed and were employed by Tire Place of Queens. She opened Tire Place in 2013 with Vincenza Cimino and Vito Gerbino. By late fall 2012, Tire Place of Queens was failing. She considered purchasing Tire Place of Queens or investing as a silent partner, but discovered it was in significant debt. Instead, she, Vito Gerbino and Vincenza Cimino began discussing opening a new business. Tire Place of Queens closed in February or March 2013. Tire Place opened in June 2013. Vito Gerbino and Vincenza Cimino made no cash contributions to the formation of Tire Place. They brought their experience and network. Tire Place has the same website, phone number, and phone system as Tire Place of Queens previously had.Based on Ms. Lombardi’s testimony, counsel for plaintiff contends that plaintiff is entitled to summary judgment because Tire Place is a mere continuation of Tire Place of Queens. As such, Tire Place is the legal successor to Tire Place of Queens and is, therefore, liable for the debt of Tire Place of Queens. Counsel further contends that Tire Place is also liable for the debt of Tire Place of Queens because Tire Place of Queens fraudulently conveyed all of its remaining assets to Tire Place.In opposition, Ms. Lombardi submits an affidavit dated December 26, 2018. Ms. Lombardi contends that this action may not be maintained because plaintiff is a Pennsylvania corporation, and plaintiff’s counsel does not have sufficient knowledgeable of plaintiff’s business records. Ms Lombardi also contends that Tire Place is distinguishable from Tire Place of Queens because, inter alia, Tire Place is a full auto repair shop while Tire Place of Queens merely sold tires.The proponent of a summary judgment motion must tender evidentiary proof in admissible form, eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).An action for continuation of successor liability requires a plaintiff to show that the corporation was a mere continuation of its predecessor (see Broadway 26 Waterview, LLC v. Bainton, McCarthy & Siegel, LLC, 94 AD3d 506 [1st Dept. 2012]). “[W]hen a successor firm acquires substantially all of the predecessor’s assets and carries on substantially all of the predecessor’s operations, the successor may be held to have assumed it’s predecessor’s…liabilities” (Aguas Lenders Recovery Group v. Suez, S.A., 585 F3d 696, 702 [2d Cir. 2009] [internal quotation marks and citations omitted]). In determining whether a successor corporation is a mere continuation of a predecessor corporation, five factors are considered: (1) all or substantially all assets are transferred to the successor corporation; (2) only one corporation exists after the transfer; (3) assumption of an identical or nearly identical name; (4) retention of the same corporation officers and/or directors; and (5) continuation of the same business (see Miot v. Miot, 897 NYS2d 670 [Sup Ct, NY Cnty 2009]).Here, Tire Place of Queens transferred its website, phone number, customer base, and network to Tire Place. Although Ms. Lombardi contends that Tire Place merely assumed the abandoned assets of Tire Place of Queens, a successor corporation has still been found to be a mere continuation of a predecessor corporation without a formal transfer of assets when, as here, only one of the two corporations is benefitting from those (see Miot v. Miot, 897 NYS2d 670 [Sup Ct, NY Cnty 2009]). Only one corporation now exists, and the names are nearly identical. Tire Place is owned by the daughter and former co-owner of Tire Place of Queens and a former employee. Lastly, Tire Place is merely an expansion of Tire Place of Queens’ business, not a different business. As such, the five factors are met, and this Court finds that Tire Place is a mere continuation of Tire Place of Queens.The Tire Place, LLC’s remaining contentions are insufficient to defeat a motion for summary judgment.Accordingly, and based on the above reasons, it is herebyORDERED, that the motion by plaintiff for summary judgment on its fourth cause of action alleging successor corporation liable for predecessor against defendant The Tire Place, LLC is granted.Dated: January 15, 2019Long Island City, N.Y
