The Second Department determined Supreme Court properly found there was a de factor merger such that the successor corporation is liable for the torts of its predecessor, and further found that Supreme Court properly found the owner of the corporation was personally liable for damages awarded against the corporation. The facts are too complex to fairly summarize here:
“Generally, a corporation which acquires the assets of another is not liable for the torts of its predecessor'” … . “However, such liability may arise if the successor corporation expressly or impliedly assumed the predecessor’s tort liability, there was a consolidation or merger of seller and purchaser, the purchaser corporation was a mere continuation of the seller corporation, or the transaction was entered into fraudulently to escape such obligations” … . Accordingly, “[a] transaction structured as a purchase of assets may be deemed to fall within this exception as a de facto merger” … .
“The hallmarks of a de facto merger are the continuity of ownership; cessation of ordinary business and dissolution of the [predecessor] as soon as possible; assumption by the successor of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the acquired corporation; and, continuity of management, personnel, physical location, assets, and general business operation'” … . Where the acquired corporation is “shorn of its assets” and becomes a “shell,” legal dissolution is not required to support a finding of de facto merger … . “[I]n non-tort actions, continuity of ownership is the essence of a merger'” … . * * *
[Re: piercing the corporate veil:] It is the plaintiff’s burden to demonstrate ” that the corporation was dominated as to the transaction attacked and that such domination was the instrument of fraud or otherwise resulted in wrongful or inequitable consequences'” … . Factors to be considered in determining whether the owner has abused the privilege of doing business in the corporate form include whether there was a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use” … . Bonanni v Horizons Invs. Corp., 2020 NY Slip Op 00563, Second Dept 1-29-20