619 N.Y.S.2d 29 | N.Y. App. Div. | 1994
—Order, Supreme Court, New York County (Myriam Altman, J.), entered August 5, 1993, which granted plaintiff’s motion to
The trial court properly decided that an adverse inference could be drawn against Miami Tru-Color for its failure to produce its president at trial for breach of a sublease by TruColor, a dissolved corporation, since dissolution does not affect liability occurring prior to dissolution and such a corporation remains obligated to respond to subpoenas (Business Corporation Law § 1006 [a], [b]; see, In re Grand Jury Subpoenas Issued to Thirteen Corps., 775 F2d 43, 48), and Mr. Melton was president of both corporations and under the control of Miami Tru-Color (see, Fisch, New York Evidence §§ 1125, 1126 [2d ed]).
The trial court also properly pierced the corporate veil as Tru-Color was the mere instrumentality and alter ego of Miami Tru-Color as the latter dominated the affairs of the former, which domination caused the wrong to plaintiff by stopping payment of rent and breaching the lease (see, Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141). The court properly weighed the evidence which revealed, inter alia, the absence of the formalities and paraphernalia of corporate existence of Tru-Color; its inadequate capitalization; an overlap in ownership, officer, directors and personnel; common addresses and telephone numbers; payments of Tru-Color’s debts by Miami Tru-Color; and use by Miami Tru-Color of Tru-Color’s property (see, Passalacqua Bldrs. v Resnick Developers S., 933 F2d 131, 139). Further, funds were shifted back and forth to the extent that Tru-Color was insolvent at the time the breach occurred (see, Directors Guild v Garrison Prods., 733 F Supp 755, 762). Concur—Ellerin, J. P., Wallach, Ross and Williams, JJ.
