Opinion
Index No. 656588/2022
07-20-2023
SE W. BAN, Plaintiff v. CHUL HONG PARK a/k/a RAY PARK, HENRY B. KIM, JEE YOUNG KIM, and DONG HE SHIN, Defendants
Unpublished Opinion
RECEIVED NYSCEF: 07/24/2023
DECISION AND ORDER
LUCY BILLINGS, J.S.C.
Defendants,Park and Shin move to dismiss the complaint's second and third claims against these defendants. The court may hot consider their affidavits' contents to support dismissal pursuant to C.P.L.R. § 3211(a) (7), Serao v. Bench-Serao, 149 A.D.3d 645, 646 (1st Dep't 2017); Calpo-Rivera v. Siroka, 144 A.D.3d 568, 568 (1st Dep't 2016); Asmar v. 20th & Seventh Assoc., LLC, 125 A.D.3d 563, 564 (1st Dep't 2015); City of New York v. VJHC Dev. Corp., 125 A.D.3d 425, 426 (1st Dep't 2015), but may consider documents their affidavits authenticate, pursuant to C.P.L.R. § 3211(a) (1). Those documents, on which plaintiff also relies, establish that Park and Shin are members of BBRH, LLC, which purchased 70% of the shares -of S&D Wave Group, Inc., in 2019. Plaintiff alleges-that Park and Shin are President and Vice-President of S&D Wave Group, but they are not parties, to the December 2019 Shareholder Agreement governing S&D Wave Group.
The complaint's second claim alleges that S&D Wave Group received a loan in May 2018 from Noah Bank; that in the Shareholder Agreement among plaintiff Ban, BBRH, and defendants, defendants agreed to be personally liable for 50% of the principal and interest due for the loan; and that defendants breached their agreement to repay their 50%. The third claim is. for defendants' unjust enrichment based on the same facts.
Not only are Park and Shin not parties to the Shareholder Agreement, but it expressly provides that plaintiff is personally liable for 50% of the remaining principal and interest for a corporate loan from Noah Bank and 50% of the monthly mortgage payments to Noah Bank, and BBRH is to pay the remaining 50%.of he monthly mortgage payments. The Shareholder Agreement does not mention Park or Shin. Although Park and Shin executed the . Shareholder Agreement in their capacities as BBRH's members on its behalf, their membership in BBRH does, not render them liable for the limited liability company's debt. N.Y. Lim. Liab. Co. Law § 609(a); Board of Mqrs. of 325 Fifth Ave. Condominium v. Continental Residential Holdings LLC, 149 A.D.3d 472, 475 (1st Dep't 2017); Kellogg v. All Sts. Hous. Dev. Fund Co., Inc.,.146 A.D.3d 615, 617 (1st Dep't 2017); Moshan v. PBM, LLC, 141 A.D.3d 496, 497 (1st Dep't 2016); Broadway 26 Waterview LLC v. Bainton, McCarthy &Siegel, LLC, 94 A.D.3d 506, 507 (1st Dep't 2012).
By comparison, as plaintiff points out, Park and Shin personally guaranteed S&D Wave Group's obligations under its lease. Park and Shin did not personally guarantee BBRH's obligations under the Shareholder Agreement.
To the extent that plaintiff alleges Park or Shin orally agreed to be liable for BBRH's debt, such an oral agreement to answer for another person's or entity's debt is unenforceable. N.Y. Gen. Oblig. Law § 5-701(2); Paul,.Weibs, Rifkind, Wharton' &Garrison v. Westergaard, 75 N.Y.2d 755, "*756 (1989); Reddy v. Mihos,160 A.D,3d 510, 514 (1st Dep't 2018); Abyssinian Dev. Corp, v. Bistricer, 127 A.D.3d 537, 538 (1st Dep't 2015); Matter of Press, 30 A.D.3d 154,. 156 (1st Dep't 2006) . To the extent that plaintiff alleges Park or Shin misappropriated S&D Wave Group's funds or refused to provide plaintiff access to its books and records, the second and third claims that these defendants move to dismiss do not encompass those allegations. Plaintiffs' allegations that Park and Shin disregarded the corporate form and that might support piercing the corporate veil to reach them pertain to the corporation S&D Wave Group and not BBRH, to which plaintiff's second and third claims pertain.
Consequently, the court grants the motion by defendants Park . and Shin to dismiss the complaint's second and third claims against these defendants. C.P.L.R. § 3211(a) (1) and (5)'. The complaint's second and third claims against the other defendants and the complaint's other claims remain.