Plaintiff's motion to dismiss so much of the counterclaim as sought damages in excess of $2 million and third-party defendants' motion to dismiss the third-party complaint were granted. The contractual provision that, in the event of plaintiff's default, defendants are entitled to retain the deposit as liquidated damages unambiguously refers to the deposit already made and held in escrow, as a party cannot retain something that it has not already acquired. As to the third-party complaint against plaintiff's members in their individual capacities, the pleadings fail to allege facts sufficient to demonstrate the inequity, fraud, or malfeasance necessary to sustain a claim to pierce the corporate veil. The third-party complaint also fails to plead any facts to substantiate the conclusory allegations of a scheme to undercapitalize plaintiff. To the extent that the third-party complaint alleges that plaintiff is undercapitalized and might not be able to pay a judgment, third-party plaintiffs could not be damaged by such a scheme, as the contractual remedy is to retain the deposit already held in escrow.
138 Bruckner Owner LLC v. Anjost Corp., NY Slip Op 05768 (1st Dep't October 21, 2021)
