Justice

DEFENDANTS= ATTORNEY

The following papers were read on Plaintiff=s motion for partial summary judgment and leave to serve an amended summon and complaint and the Cross-motion of the individual Defendants for summary judgment:

Plaintiff=s Memorandum of Law;

Defendant=s Memorandum of Law;

Defendant=s Reply Memorandum of Law.

Stanley Kanoff and Ira Schachter are president and secretary/treasurer, respectively, of S.K. I., Inc. (ASKI@), a New York corporation which functions, in essence, as a footwear broker. Codefendant Stanley Kanoff (AKanoff@) owns no stock in SKI, although his wife and codefendant Ira Schachter (ASchachter@), each own 50% of SKI.

At some point in 1995, the Plaintiff Venator Group Realty, Inc., f/k/a Kinney Shoe Corporation (AVenator@), entered into a contractual relationship with SKI pursuant to which SKI would purchase footwear from Venator. In January, 1997, SKI entered into two, identical AService Agreements@ with E.I.S. Marketing Associates, Inc (AEIS@) and C. Etta, Inc. (AC. Etta@), in which, respectively, Schachter and Kanoff maintain ownership interests. The agreements were executed by Kanoff=s wife, as president of C. Etta, and by Schachter=s wife, as secretary/treasurer of EIS.

In November, 1999, Venator entered into a purchase agreement with SKI pursuant to which merchandise was delivered to, and accepted by, SKI for the period Athrough and including April, 2000". According to Venator, despite the issuance of certain invoices reflecting an outstanding indebtedness of $284,429.66, no payment from SKI was forthcoming.

By order dated February 26, 2002, the parties certified that discovery was completed B except for noted exceptions B and the Plaintiff was directed to file a note of issue within 120 days of same. Apparently, the note of issue has not yet been filed.

The proposed amended complaint alleges that SKI, C. Etta and EIS were dominated and controlled by Kanoff and Schachter; that the amounts paid by SKI to these entities were Asham transfers@ for which no consideration was provided; and that the disputed transfers to C. Etta and EIS rendered SKI undercapitalized, insolvent and Ajudgment proof@ in violation of the Debtor and Creditor Law '' 273, 274, 275.

Although the exercise of judicial discretion in allowing amendments on the eve of trial should be Adiscreet, circumspect, prudent and cautious" (Boyd v. Trent, 297 A.D. 2d 301 [2^nd Dept. 2002]; and Clarkin v. Staten Island Univ. Hosp., 242 A.D. 2d 552 [2^nd Dept. 1997]), a review of the parties= submissions establishes that the Plaintiff moved with reasonable diligence in making the subject application after the conducting depositions and discovery which revealed the information on which the claims at issue are premised. See, Hochendler v. We Transport, Inc., supra; Crivaro v. Crivaro, 295 A.D. 2d 304 (2^nd Dept. 2002). Further, since the time of the commencement of this action, Plaintiff has diligently pursued its theory of piercing the corporate veil. This application, thus, should come as no surprise to Defendants.

In addition, the proposed amendments are not devoid of merit. Hunt v. Pierce Manufacturing, Inc., supra; and Jordan v. Aviles, supra. Upon the record presented, the Court concludes that the Defendants have failed to demonstrate that significant prejudice would result upon granting the motion. Guiliano v. Carlisle, 296 A.D. 2d 438 (2^nd Dept. 2002); and Eagle Ins. Co. v. Queens Tunnel Service Station, Inc., supra. See also, White Rose Food v. Mustafa, 251 A.D. 2d 653 (2^nd Dept. 1998). Under these circumstances, Venator=s motion to amend should be granted.

2. Venator=s Motion for Summary Judgment on its Breach of Contract Claim and Account Stated Theories as Against Defendant SKI

Although Venator has annexed deposition excerpts containing certain statements by the individual Defendants relative to SKI=s failure to pay for certain merchandise, Venator=s papers do not contain the affidavit of an individual or employee possessing personal knowledge of the relevant transactions and occurrences surrounding the alleged breach of contract and account stated claims sued upon.

Further, the complaint and proposed amended complaint identify a series of dated invoices upon which the subject breach of contract and account stated causes of action are apparently based. However, these foundational documents have not been submitted in support of Venator=s motion. See, Neuman Distributors, Inc., Falak Pharmacy Corp., 289 A.D. 2d 310 (2^nd Dept. 2002).

Summary judgment is a drastic remedy which can be granted only upon a prima facie showing which eliminates all material issues of fact. See, Alvarez v. Prospect Hosp., 68 N.Y. 2d 320 (1986); and Mosheyev v. Pilevsky, 283 A.D. 2d 469 (2^nd Dept. 2001). The failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. See also, Winegrad v. New York Univ. Med. Center, 64 N.Y. 2d 851, 853 (1985). See also, Curtin v. Phipps Houses Services, Inc., B A.D. 2d B ,747 N.Y.S. 2d 388 (2^nd Dept. 2002).

3. The Individual Defendants= Motion to Dismiss the Third, Fourth

Preliminarily, the Defendants contend that the facts fail, as a matter of law, to support Venator=s Apiercing of the corporate veil@ theory with regard to the fraud (third cause of action), account stated (fourth cause of action) and unjust enrichment (fifth cause of action) claims.

ATo successfully pierce the corporate veil, a third party must show 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=." Old Republic National Title Ins. Co. v. Moskowitz, 747 N.Y.S. 2d 556, 558 (2^nd Dept. 2002), quoting from, Matter of Morris v. New York State Dept. of Taxation & Fin.,82 N.Y. 2d 135, 141 (1993). See also, Aetna Elec. Distributing Co. v. Homestead Elec., Ltd., 279 A.D. 2d 541 (2^nd Dept. 2001). A claim predicated upon piercing the corporate veil does not constitute an independent cause of action, but instead, involves Aan assertion of facts and circumstances which will persuade the court to impose the corporate obligation on its owner.@ Matter of Morris v. New York State Dept. of Taxation & Fin., supra, at 141.

Upon a careful review of the parties= submissions, the Court concludes that triable issues of fact have been presented as to whether, under the circumstances presented, the individual Defendants exercised complete domination over the Defendants SKI, C. Etta and EIS, and whether that domination was employed to perpetrate a wrong against Venator. A claim for corporate veil piercing is a fact-laden claim which is not well suited for resolution via summary judgment resolution. First Bank of Americas v. Motor Car Funding, Inc., 257 A.D. 2d 287, 294 (1^st Dept. 1999); and Forum Ins. Co. v. Texarkoma Transp. Co., 229 A.D. 2d 341, 342 (1^st Dept 1996). See also, Samsung America, Inc. v. Yugoslav-Korean Consulting & Trading Co., Inc., 248 A.D. 2d 290, 291 (1^st Dept. 1998); and Daniel J. Edelman, Inc. v. Korn, 231 A.D. 2d 405, 406 (1^st Dept. 1996).

Further, and for the purposes of Venator=s motion to amend, the Court is unpersuaded by Kanoff=s assertion that since he was not a SKI stockholder, the corporate veil doctrine is inapplicable to him as a matter of law. See, Establissement Tomis v. Shearson Hayden Stone, Inc., 459 F. Supp. 1355, 1366, fn. 13 (S.D.N.Y. 1978). See also, Morris v. New York State Dept. of Taxation and Finance, 183 A.D. 2d 5, 8 (3^rd Dept. 1992), revd. on other grds., 82 NY2d 135, 142 (1993).

However, to the extent that the third cause of action purports to set forth an independent fraud claim against the individual Defendants based on the theory that these Defendants misrepresented SKI=s future ability to pay its debts, that claim must be dismissed. To make out a claim sounding in fraud, a Plaintiff must establish the misrepresentation of a material fact, knowledge by the party making the misrepresentation that it was false when made, justifiable reliance upon the statement, and damages. Abrahami v. UPC Const. Co., Inc., 224 A.D. 2d 231, 232-233 (1^st Dept. 1996). See also, Cohen v. Houseconnect Realty Corp., 289 A.D. 2d 277, 278 (2^nd Dept. 2001); McGovern v. T.J. Best Bldg. and Remodeling Inc., 245 A.D. 2d 925, 927 (3^rd Dept. 1997); and Pappas v. Harrow Stores, Inc., 140 A.D. 2d 501, 504 (2^nd Dept. 1988).

Here, the vaguely framed averments contained in the complaint relating to this theory CPLR 3016(b); and Tyras v. American Information Network, Inc., 295 A.D. 2d 421 (2^nd Dept. 2002), merely allege, upon Ainformation and belief@, that the individual Defendants made statements with respect to the SKI=s ability to discharge its debts at some point in the future.

Venator has not submitted the affidavit of the person to whom these alleged statements were made or otherwise illuminated the factual circumstances surrounding the alleged misrepresentations. Nor does the complaint expressly allege that purported statements concerning the payment of SKI=s debts were false and known to be false when made by the individual Defendants. See, Neff v. StevenSchwartzapfel, P.C., 254 A.D. 2d 137, 138 (1^st Dept. 1998); and Liling v. Segal, 220 A.D. 2d 724, 726 (2^nd Dept. 1995). Neither of Venator=s briefs address with particularity, the viability of its fraud theory as expressly pleaded against the individual Defendants in the third cause of action.

Similarly, to the extent that the fourth cause of action sounding in account stated seeks a direct recovery from the individual Defendants B as opposed to recovery flowing from a piecing of the corporate veil B that cause of action must also be dismissed, since any account stated arose exclusively from the contractual relationship between Plaintiff and the corporate Defendant, SKI.

Finally, while Venator=s fifth cause of action sounding in unjust enrichment appears to be duplicative of the Venator=s contract claims Bettan v. Geico General Ins. Co., 296 A.D. 2d 469 (2^nd Dept. 2002); Cf. Auguston v. Spry, 282 A.D. 2d 489, 491 (2^nd Dept. 2001), the cross-moving Defendants have failed to specifically address the foregoing theory with adequately particularized factual and legal analysis in their supporting papers. Absent a prima facie showing of entitlement to judgment, the cross- movant=s application to dismiss the fifth cause of action insofar as asserted against them must be denied. See, Blum v. Guardian Life Ins. Co. of America, 283 A.D. 2d 533 (2^nd Dept. 2001).

The Court has considered the parties= remaining contentions and concludes that none warrants relief other than that awarded above.

ORDERED, that the branch of the Plaintiff=s motion which is for leave to serve the proposed amended complaint and to add C. Etta, Inc. and EIS Marketing Associates, Inc., as parties to the within action is granted; and it is further,