Summary
In Weiss v. Taylor, 144 Ala. 440, 39 So. 519, cited in Scruggs v. Beason, supra, the complainants were the heirs at law of the original owners of a burial lot in a cemetery and this court held that they were entitled to maintain a bill to remove obstructions, but the burial lot abutted on the alley or roadway obstructed.
Summary of this case from Ayers v. StidhamOpinion
2012-05-30
Shana WEISS, et al., respondents, v. MICHAEL TAYLOR, LTD., defendant, Michael Taylor, etc., appellant.
Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP, Saint James, N.Y. (James J. Herz of counsel), for appellant. Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead, N.Y. (Gair G. Betts of counsel), for respondents.
Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP, Saint James, N.Y. (James J. Herz of counsel), for appellant. Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead, N.Y. (Gair G. Betts of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract and fraud, the defendant Michael Taylor appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated May 23, 2011, as denied those branches of his motion which were for summary judgment dismissing the first, third, and fifth causes of action insofar as asserted against him.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendant Michael Taylor which were for summary judgment dismissing the first, third, and fifth causes of action insofar as asserted against him are granted.
The Supreme Court erred in denying that branch of the motion of the defendant Michael Taylor (hereinafter Taylor), which was for summary judgment dismissing the first cause of action, which alleged breach of contract, insofar as asserted against him. Taylor established, prima facie, that he entered into the alleged agreement in his capacity as the president of Michael Taylor, Ltd. In opposition, the plaintiffs failed to raise a triable issue of fact as to the existence of circumstances that would entitle them to pierce the corporate veil to impose personal liability on Taylor ( see Village Auto Ctr., Inc. v. Haimson, 72 A.D.3d 805, 806, 898 N.Y.S.2d 479;Williams v. Lovell Safety Mgt. Co., LLC, 71 A.D.3d 671, 672, 896 N.Y.S.2d 150).
Furthermore, the Supreme Court erred in denying that branch of Taylor's motion which was for summary judgment dismissing the third cause of action, which alleged conversion, insofar as asserted against him. Taylor established his prima facie entitlement to judgment as a matter of law by showing that this cause of action, as pleaded, was predicated on a mere breach of contract ( see Weinstein v. Natalie Weinstein Design Assoc., Inc., 86 A.D.3d 641, 642, 928 N.Y.S.2d 305;East End Labs., Inc. v. Sawaya, 79 A.D.3d 1095, 1096, 914 N.Y.S.2d 250;Wolf v. National Council of Young Israel, 264 A.D.2d 416, 417, 694 N.Y.S.2d 424). In opposition, the plaintiffs failed to raise a triable issue of fact.
Finally, Taylor was properly awarded summary judgment dismissing the fifth cause of action insofar as asserted against him. In opposition to his prima facie showing of entitlement to judgment as a matter of law ( see Ort v. Ort, 78 A.D.3d 1138, 1138, 911 N.Y.S.2d 666;Light v. Light, 64 A.D.3d 633, 634, 883 N.Y.S.2d 553), the plaintiffs failed to raise a triable issue of fact ( see generally High Tides, LLC v. DeMichele, 88 A.D.3d 954, 957–958, 931 N.Y.S.2d 377).