The opinion
Stone v Dim Sum Palace, Inc.
2025 NY Slip Op 31880(U)
May 28, 2025
Supreme Court, New York County
Docket Number: Index No. 151794/2024
Judge: Mary V. Rosado
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
[FILED: NEW YORK COUNTY CLERK 05/28/2025 04:26 PM] INDEX NO. 151794/2024
NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 05/28/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M
Justice
---------------------X INDEX NO. 151794/2024
ZACHARY STONE, DELIA BEATRIZ MARTINEZ, NICOLAS
MOTION DATE 09/19/2024
CIANCA,
Plaintiff, MOTION SEQ. NO. 002
- V -
DIM SUM PALACE, INC.,DIM SUM PALACE, DIM SUM
PALACE YAN, INC.,DIM SUM PALACE V INC.,DIM SUM
PALACE VI INC.,DIM SUM SAM INC.,DIM SUM YAN DECISION + ORDER ON
INC.,DIM SUM PALACE EXPRESS INC.,DIM SUM NOW MOTION
INC.,KEVIN YAN, SAM YAN, DIM SUM V INC, DIM SUM VI
INC, JOHN DOES, ABC CORPS. I - X,
Defendant.
______________________________,_ _ _ - - - - X
KEVIN YAN, SAM YAN, DIM SUM V INC Third-Party
Index No. 596190/2024
Plaintiff,
-against-
B&J HOOD AND DUCT CLEANING, INC.
Defendant.
-------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 67, 68, 69, 70, 71,
72, 73, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90,119,120,121, 122,123,134
were read on this motion to/for DISMISS
Upon the foregoing documents, and after oral argument, which took place on April 15,
2025, 1 where Brandon S. Schwartz, Esq. appeared for Plaintiffs Zachary Stone, Delia Beatriz
Martinez, and Nicolas Cianca ("Plaintiffs"), and Joseph Chiantella, Esq. appeared for Defendants
Dim Sum V Inc. ("Dim Sum V"), Kevin Yan a/k/a Yi Hai Zhen ("Kevin"), and Sam Yan a/k/a Yi
1
The final submission date was marked as April 25, 2025, to allow for the submission of sur-reply after oral
argument.
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Shen Zhen ("Sam") (collectively "Defendants"), Defendants' motion dismissing Plaintiffs'
Complaint against Kevin and Sam pursuant to CPLR 321 l(a)(l) and (a)(7) is granted.
I. Background
As alleged in the Second Amended Complaint, Plaintiffs were residential tenants on the
third and fourth floors in a building at 6 Chatham Square, New York, NY 10038 (the "Building").
A commercial tenant operated a business named Dim Sum Palace on the first floor. On April 30,
2022, a fire allegedly started in Dim Sum Palace's kitchen and spread to the third and fourth floors,
damaging Plaintiffs' property. Plaintiffs sued Defendants, alleging they are responsible for the fire
and ensuing property damage. They also sue for negligent infliction of emotional distress.
Defendants now move to dismiss Kevin and Sam, as there are no allegations that they, in their
individual capacities, were responsible for the fire, nor are there any allegations to support piercing
the corporate veil.
II. Discussion
Defendants' motion to dismiss is granted. When reviewing a motion to dismiss for failure
to state a claim, the Court must give Plaintiff the benefit of all favorable inferences which may be
drawn from the pleadings and determine only whether the alleged facts fit within any cognizable
legal theory (Sassi v Mobile Life Support Services, Inc., 37 NY3d 236, 239 [2021]. However,
conclusory allegations or claims consisting of bare legal conclusions with no factual specificity
are insufficient to survive a motion to dismiss (Godfrey v Spano, 13 NY3d 358,373 [2009] Barnes
v Hodge, 118 AD3d 633, 633-634 [1st Dept 2014]). A motion to dismiss for failure to state a claim
will be granted if the factual allegations do not allow for an enforceable right of recovery
(Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]).
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Sam is the principal of Dim Sum V and signed a commercial lease for the first floor of the
Building in his capacity as President of Dim Sum V (NYSCEF Doc. 73). As routinely held by the
Court of Appeals, the incorporation of a business allows its shareholders to escape personal
liability (see, e.g. Franklin Street Realty Corp. v NYC Environmental Control Board, 34 NY3d
600, 604-05 [2019]). The means by which individual shareholders become liable for the acts of
the corporation is through piercing the corporate veil. A plaintiff who seeks to pierce the corporate
veil bears a heavy burden of showing that the corporation was dominated by the shareholders, and
that such domination was used to defraud or carryout some wrong on the plaintiff (Max Markus
Katz, P.C. v Sterling National Bank, 206 AD3d 533,534 [1st Dept 2022]).
Here, there are no allegations of corporate domination or fraud anywhere in the Complaint.
Nor are there any factual allegations that Sam took certain acts outside the scope of his role as
owner of Dim Sum V to cause the fire to impose personal liability. The factual allegations in the
Second Amended Complaint and the fire incident report make clear the fire started due to a grease
accumulation in the duct - a common cause of fires in many restaurants and which, if proven true,
amounts to negligence against the corporate defendant-Dim Sum V. As recently held by the First
Department, nonfeasance, i.e., the failure to act - here the alleged failure to clean the ducts of
grease - does not impose personal liability on corporate officers. (see Golub v Modern Yachts,
LLC, 235 AD3d 404 [1st Dept 2025]).
Nor are there any factual allegations that support imposing personal liability against
Kevin. The testimony submitted by Plaintiff makes clear that Kevin, Sam's older brother, never
worked at the restaurant and only visited (NYSCEF Doc. 128). That there is purportedly video
footage of him trying to get workers to respond to and to investigate the fire does not give rise to
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a claim for negligence, and the allegations against Kevin to support a claim of negligence are
conclusory and boilerplate.
Moreover, Plaintiffs' argument that Defendants are precluded from making this motion
based on a stipulation extending their time to answer is without merit. A CPLR 3211 (a)(7) motion
may be made at any time. Defendants did not waive a CPLR 321 l(a)(l) defense as Plaintiff was
put on notice of the documentary evidence which forms the basis of the CPLR 321 l(a)(l) motion
(see NYSCEF Doc 89 at 129). Therefore, Defendants' motion to dismiss is granted, and Plaintiffs'
Second Amended Complaint against Sam and Kevin is dismissed. The corporate Defendant Dim
Sum V, Inc., remains a viable active defendant from whom Plaintiffs may ultimately recover.
Accordingly, it is hereby,
ORDERED that Defendants' motion 1s granted, and Plaintiffs' Second Amended
Complaint is dismissed against Defendants Kevin Yan and Sam Yan; and it is further
ORDERED that within ten days of entry, counsel for Defendants shall serve a copy of this
Decision an Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
5/28/2025
DATE HON. MARY V. ROSADO, J.S.C.
CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION
x GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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