Winkler v. Hirsch et al
ORDER granting Friedman's 45 motion to dismiss as set forth in the attached Order. A copy of this order will be mailed to Winkler at his address of record. Ordered by Judge John Gleeson on 8/5/2013. (Kim, Scarlet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
- versus -
HERSHEY FRIEDMAN; AGRI-STAR MEAT
& POULTRY LLC; SHF INDUSTRIES,
JOHN GLEESON, United States District Judge:
Jerome Winkler commenced this pro se diversity action against Hershey
Friedman, Agri-Star Meat & Poultry LLC (“Agri-Star”), and SHF Industries (“SHF”) alleging
breach of contract. On June 25, 2013 I granted Agri-Star and SHF’s motion to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
Winkler v. Friedman, No. 12-cv-3893, 2013 WL 3226763 (E.D.N.Y. June 25, 2013). On July 1,
2013 Friedman filed a letter with the Court requesting that the complaint be dismissed against
him for, inter alia, the reasons set forth in the Court’s June 25, 2013 memorandum and order.
ECF No. 42. I construed this letter as an application for a pre-motion conference for leave to file
a motion to dismiss and at a status conference on July 17, 2013, I set an expedited briefing
schedule for a motion to dismiss by Friedman.
Winkler’s allegations, even liberally construed, do not set forth a plausible claim
for breach of contract against Friedman in his individual capacity. “The general rule, of course,
is that a corporation exists independently of its owners, who are not personally liable for its
obligations, and that individuals may incorporate for the express purpose of limiting their
liability.” East Hampton Free School District v. Sandpebble Builders, Inc., 884 N.Y.S.2d 94,
126 (N.Y. App. Div. 2009) (citing Bartle v. Home Owners Cooperative, 309 N.Y. 103, 106
(N.Y. 1955)). The doctrine of piercing the corporate veil is “an exception to this general rule,
permitting, in certain circumstances, the imposition of personal liability on owners for the
obligations of their corporation.” Id. (citing Matter of Morris v. New York State Department of
Taxation and Finance, 82 N.Y.2d 135, 140-41 (N.Y. 1993). A plaintiff seeking to pierce the
corporate veil must demonstrate that “(1) the owners exercised complete domination of the
corporation in respect to the transaction attacked; and (2) that such domination was used to
commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury.” Morris, 82
N.Y.2d at 141.
Nothing in the complaint suggests that Friedman, in his dealings with Winkler,
acted other than in his capacity as CEO of Agri-Star. In fact, Winkler asserts in the amended
complaint that Friedman acted in his official capacity as CEO in entering into the alleged
contract with Winkler. See Am. Compl. ¶¶ 8 (“In or about October 2010, Plaintiff and . . .
Friedman, as CEO of Agri Star and Agri Star Meat & Poultry . . . entered into a multi-part
agreement . . . .”), 10 (“Defendant Friedman . . . acting in [his] capacity as officer[ ] and
principal owner[ ] of AGRI-STAR agreed to give Plaintiff a ‘MANDATE’ to institute all and
any necessary changes and efficiencies to help make the company maximize its potential.”), ECF
No. 5. Nor is there any allegation in the complaint to suggest that Friedman, through some
asserted domination of Agri-Star, “abused the privilege of doing business in the corporate form
to perpetrate a wrong or injustice” against Winkler. Morris, 82 N.Y.2d at 141. Winkler does not
suggest, for example, that Friedman failed “to respect the separate legal existence of the
corporation, or that he treated its corporate assets as his own, or that he undercapitalized the
corporation, or that he did not respect corporate formalities, or that he, in any other way, abused
the privilege of doing business in the corporate form.” 1 East Hampton, 884 N.Y.S. 2d at 99
(citing AHA Sales, Inc. v. Creative Bath Products, Inc., 867 N.Y.S.2d 169 (N.Y. 2008)).
Accordingly, Friedman’s motion to dismiss is granted.
John Gleeson, U.S.D.J.
Dated: August 5, 2013
Brooklyn, New York
Winkler’s additional submissions to the Court, ECF No. 44, similarly fail to plausibly support a
claim for piercing the corporate veil. These submissions consist of receipts for hotel expenses allegedly paid for by
Friedman and a series of emails between Winkler and an Agri-Star employee disputing whether Winkler was owed a
certain payment from Agri-Star.
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