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Moss v. Garcia-Chamorro

Supreme Court of New York, First Department

October 8, 2013

Graeme A. Moss, et al., Plaintiffs-Respondents,
v.
Claudio Garcia-Chamorro, et al., Defendants-Appellants

Law Offices of Mark Krassner, New York (Mark Krassner of counsel), for appellants.

Goldberg & Rimberg, PLLC, New York (Joel S. Schneck of counsel), for respondents.

Freedman, J.P., Richter, Feinman, Gische, JJ.

Judgment, Supreme Court, New York County (Jeffrey K. Oing, J.), entered April 3, 2013, in plaintiffs' favor, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered March 18, 2013, which granted plaintiffs' motion for summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The deposition testimony of defendant Claudio Garcia-Chamorro establishes prima facie that he and the corporate defendants are liable for the underlying judgment, entered April 16, 2008, in plaintiffs' favor against CGC Works, Inc., on theories of piercing the corporate veil, corporate successor liability, and fraudulent conveyance (see e.g. Cobalt Partners, L.P. v GSC Capital Corp., 97 A.D.3d 35, 40 [1st Dept 2012]; Schumacher v Richards Shear Co., 59 N.Y.2d 239, 244-245 [1983]). Defendants failed to raise an issue of fact in opposition, and were in any event precluded from doing so, as a sanction imposed in prior order for that wilful failure to provide discovery. Garcia-Chamorro testified that he was the sole owner and officer of all three corporations, that he transferred assets between the corporations for no value, and that all three corporate businesses were operated out of his personal residence. He acknowledged that he had destroyed the corporate records of CGC Works about a year before his deposition and that he stopped doing construction work for CGC Works and transferred its assets, for no value, to defendant CGC Woodworks, Inc. The record shows that the destruction of CGC Works' records followed the grant to plaintiffs of the arbitration award against CGC Works upon which the underlying judgment was entered.

We have considered defendants' remaining arguments and find them unavailing.


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