Opinion
2005-1348 NC.
Decided June 30, 2006.
Appeal from an order of the District Court of Nassau County, Third District (Sharon Commissiong, J.), entered May 6, 2005. The order, insofar as appealed from, denied the individual defendant's motion to dismiss the complaint as against him and for an award of attorney's fees for having frivolously included him in the action, and granted plaintiff's cross motion for leave to amend the complaint by adding a cause of action seeking to pierce the corporate veil and hold the individual defendant personally liable for said corporation's debts.
Appeal, insofar as taken by defendant Minifar, Inc., dismissed on the ground that said defendant is not aggrieved by the order (CPLR 5511).
Order, insofar as appealed from by defendant Sadighpour, modified by providing that the branch of defendant Sadighpour's motion seeking to dismiss the complaint as against him is granted and that plaintiff's cross motion seeking leave to amend the complaint is denied; as so modified, affirmed without costs.
PRESENT: ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
In this action, plaintiff seeks to recover, pursuant to an escrow agreement, funds that it expended, in excess of the amount being held in escrow, to satisfy certain violations on a premises sold by the corporate defendant Minifar, Inc., to a third party. In its original complaint, plaintiff alleged that the individual defendant, Farmarz Sadighpour, had executed a written guaranty of the escrow agreement. The individual defendant moved, inter alia, to dismiss the action against him on the ground that he was not a party to the escrow agreement and had not executed a written guaranty. This branch of the individual defendant's motion should have been granted since plaintiff conceded, in its opposition papers, that it could not locate a written guaranty and consented to withdraw said cause of action against the individual defendant ( see General Obligations Law § 5-701). In the circumstances presented, however, the branch of the motion seeking an award of attorney's fees was properly denied on the ground that plaintiff did not engage in frivolous conduct (Rules of the Chief Administrator [ 22 NYCRR] § 130-1.1).
Plaintiff's cross motion, insofar as it sought leave to amend the complaint to add a cause of action to pierce the corporate veil, should have been denied since piercing the corporate veil is not recognized as a separate cause of action ( Fiber Consultants, Inc. v. Fiber Optek Interconnect, Corp., 15 AD3d 528), and because the District Court has no jurisdiction to grant such equitable relief ( see 19 W. 45th St. Realty Co. v. Doram Elec. Corp., 233 AD2d 184; Westwater Equities, LLC v. Mirsky, 2002 NY Slip Op 50557[U] [App Term, 9th 10th Jud Dists]).
Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.