Meister Seelig & Fein, L.L.P. v Interstate Design Contr. Corp NY Slip Op 33397(U) December 10, 2010 Supreme Court, New York County Docket

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1 Meister Seelig & Fein, L.L.P. v Interstate Design Contr. Corp NY Slip Op 33397(U) December 10, 2010 Supreme Court, New York County Docket Number: /2010 Judge: Jane S. Solomon Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication.

2 [* 1] ANNEDON I '. SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART Index Number : /2010 MEISTER SEELIG & FElN LLP vs. INTERSTATE DESIGN CONSTRUCTION SEQUENCE NUMBER : 001 DISMISS ACTION Notlce 04 Motion/ Order to Show Cause - Affidavits - Exhlblts... Answarlng Affidavits - Exhlbits MOTION I/ II I1 - - INDEX NO. DATE /d4 /Id MOTION SEQ. NO. MOTION GAL. NO. this motion t ow b:>mkl) BPERS NUMOEREP 143 Repiylng Affidavlts Ctoss-Motion: c] No Upon the foregoing papers, it ia order%d that thls motion is NMI YORK COUNTY CLERK'S OFFICE Check one: m FINAL DISPOSITION NON-FINAL DISPOSITION Check if appropriate: n DO NOT POST 0 REFERENCE 0 SUBMIT ORDER/JUDG. 0 SETTLE ORDER /JUDG.

3 [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART X MEISTER SEELIG & FEIN, L.L.P., Plaintiff, Index No /2010 DECISION & ORDER -against- INTERSTATE DESIGN CONSTRUCTION CORP., A/K/A INTERSTATE DESIGN CONSTRUCTION, INC., TALBOT CONSTRUCTION, INC., JOHN ZAMBETI, and RICHARD REITANO, JANF, 8. SOLOMON, J. t Plaintiff, Meister Seelig FC Fein, LLP. (MSF), a law firm, sues the defendants for ungaid legal fees accrued in connection with representation in two segarate matters. Defendants Talbot Construction, Inc. (Talbot), John Zambeti (Zambeti) and Richard Reitano (Reitano), together, move to dismiss the complaint as against them for failure to state a cause of action; and for lack of personal jurisdiction as to Talbot. The motion is decided as follows. Reitano and Zambeti are equal co-owners of Interstate Design Construction Corg. (Interstate), a New York corporation. Talbot is a Georgia corporation, solely owned by Zambeti. In 2008, MSF was retained to represent Interstate in two unrelated law suits (the Underlying Actions). Over the course of those 1 zambeti is occasionally spelled Zambetti in the papers. For continuity, he will be referred to by the name that appears in the caption. 1

4 [* 3] actions, MSF bill& t. A portion of this 0 debt was paid by Talbot. The balance remains unpaid. MSF initiated this action for breach of contract and unjust enrichment against all defendants, and alter ego liability against Reitano, Zambeti and Talbot. On a motion to dismiss, all of the allegations in the complaint are viewed in the light most favorable to the plaintiff and must be broadly construed (Leon v. Martinez, 84 NY2d 83, [19941). The complaint alleges that claims were raised against Underlying Actions (Complaint, 2 and 3), and that: Interstate is a subsidiary or affiliate, and alter ego of Talbot, Zambeti and Reitano. It was thinly capitalized... (bills due and owing to MSF... were paid on behalf of Interstate by Talbot), its operations and management are dominated and controlled by Talbot... Zambeti and Reitano.'. * (Complaint, 7). Claims were asserted in both [Underlying Actions] against not only Interstate but also against Interstate's individual owners.. and, at the express request of Defendants, MSF advised them and took steps on their behalves [sic] to protect their own individual interests... which were inextricably intertwined with the interests of Interstate (id., 15) Defendants argue that Interstate was the only client that retained MSF and the only defendant here which was a party to any matter handled by MSF, that Reitano or Zambeti were not named, nor were claims asserted against them. They also state that Talbot is an independent entity, to which only Zambeti is -2-

5 [* 4] connected; it has no contacts with New York and nothing to do with the Underlying Actions. Though neither side submits the retainer agreement, Reitano states that "at no time did Talbot Construction, Inc., John Zambeti nor Richard Reitano retain [MSF] to perform any legal services for them individually" (Reitano affidavit, attached to Motion, 17). MSF counters that in the course of representing Interstate, it also represented Zambeti and Reitano individually, at their request, because they were threatened with personal liability in the two underlying actions, though those threats were never reduced to claims in any pleadings filed (Affirmation in opposition, 2). As an initial matter, there is no allegation that Talbot is present in (CPLR 301) or transacted any business (CPLR 302) in New York. Zambeti, Talbot.'s sole shareholder, states that Talbot is not registered here and has no offices, books, records, or any other connection to New York (Zambeti Affidavit, attached to Reply, 3). MSF's allegation that Talbot paid a portion of its bill to Interstate is insufficient to establish jurisdiction over Talbot here. MSF's assertion that Zambeti and Reitano benefitted from its services and their denials raise issues of fact. "Unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no sigmificant dispute exists regarding it... dismissal should not eventuate" (Guggenheimer v. Ginzburg -3-

6 [* 5] 4 43 NY2d 268, 275 [1977]). The allegations are sufficient to support the claims against them. The third cause of action to pierce a corporate veil is inadequately pleaded. The mere claim that the corporation was completely dominated by the owners, or conclusory assertions that the corporation acted as their alter ego without more, will not suffice to support the equitable relief of piercing the corporate veil (Goldman v. Chapman, 44 AD3d 938, 939 Dept., Accordingly, it hereby is ORDERED that the motion to dismiss is granted to the following extent: 1) the complaint is severed and dismissed as to defendant Talbot Construction, Inc., and the Clerk of the Court is directed to enter judgment accordingly, with costs and disbursements as taxed, and 2) the third cause of action is dismissed, and is otherwise denied; and it further is ORDERED that Zambeti and Reitano are directed to serve an answer to the complaint within twenty (20) days after service of a copy of this order with notice of entry; and it further is -4-

7 [* 6] ORDERED that counsel shall appear for a preliminary conference in Part 55, 60 Centre Street, Room 432, New York, NY, on February 22, 2011 at 10 AM. Dated: December b? 2010 V J.S.C. JANE S. SOLOMON -5-