Bold Broadcasting LLC v. Noogalights LLC et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BOLD BROADCASTING LLC d/b/a BOLD MEDIA,
Plaintiff,
- against -
NOOGALIGHTS, LLC,
Defendant.
MEMORANDUM AND
ORDER
24-CV-1482(SIL)
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NOOGALIGHTS, LLC,
Third-Party Plaintiff,
- against -
MATTHEW GLASER,
Third-Party Defendant.
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STEVEN I. LOCKE, United States Magistrate Judge:
Presently 	before 	the 	Court 	is 	Third-Party 	Defendant 	Matthew 	Glaser’s
(“Glaser”) motion to dismiss Defendant/Third-Party Plaintiff Noogalights, LLC’s
(“Noogalights”) 	Third-Party 	Complaint 	(the 	“TPC”), 	Docket 	Entry 	(“DE”) 	[65],
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”)
for failure to state a claim. DE [78]. Noogalights opposes the motion. DE [79]. For
the reasons set forth herein, Glaser’s motion to dismiss is denied.
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I. 	BACKGROUND
A. 	Facts1
1. 	The Parties and Underlying Action
The underlying action between Plaintiff Bold Broadcasting LLC d/b/a Bold
Media (“Plaintiff” or “Bold”) and Noogalights arises out of Bold’s provision of a
“holiday light display.” See generally Complaint (“Compl.”), DE [1-1]; TPC ¶ 7. Bold
is a supplier of industrial holiday light display equipment located in New York. TPC
¶¶ 3, 7. 	Noogalights is located in Tennessee and operates holiday light shows,
including the show for which Bold provided its services that forms the basis for the
underlying lawsuit. Id. at ¶¶ 1, 7; Compl. ¶¶ 3, 5. Pursuant to a September 30, 2023
agreement between Noogalights and Bold (the “Agreement”), Bold agreed to supply
Noogalights with light displays to be used at a holiday light show in Soddy Daisy,
Tennessee. 	Compl. ¶ 5; TPC ¶ 7. 	Plaintiff alleges that Defendant breached the
agreement “wherein [Bold] agreed to install and operate a holiday light display for
the 2023 holiday season . . . .” Compl. ¶ 5. According to Plaintiff, Noogalights “failed
to pay the contracted sum of $35,000.00 or the sum of $30,000.00 for ticket sales by
January 1, 2024” and were in default of the Agreement at the time Bold commenced
this action. Id. at ¶¶ 10-15.
In its Amended Answer to the Complaint, Noogalights asserts counterclaims
against Bold, alleging, inter alia, that Bold “breached the contract by supplying life-
1 Unless otherwise stated, the facts are drawn from the TPC, DE [65], and are accepted as true for
purposes of this motion. Trade Pay LLC v. Horowitz, No. 21-CV-442(ENV)(ARL), 2023 WL 12030712,
at *1 n.1 (E.D.N.Y. Oct. 5, 2023) (“Because the instant motion is a motion to dismiss, all facts alleged
in the complaint are accepted as true and all reasonable inferences are drawn in plaintiff’s favor.”).
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threatening, 	incomplete, 	and 	broken 	equipment 	. 	. 	. 	.” 	See 	Noogalights’s
Counterclaim (“Def.’s Counterclm.”), DE [59], ¶ 3. 	According to Noogalights, the
lights were “dangerous and defective.” Id. at ¶ 39. In the instant third-party action,
Noogalights makes similar allegations against Glaser, Bold’s President and CEO,
individually. 	TPC ¶¶ 36-76. 	Noogalights alleges that Glaser “controlled and was
responsible for the day-to-day operations and business decisions of Bold Media,
including the decisions to induce Noogalights into the subject contract . . . .” Id. at ¶
4. 	Noogalights further claims that Glaser “was the primary agent and/or actor” of
the underlying tortious conduct. Id. at ¶ 6.
B. 	Procedural Background
By way of a Complaint filed on January 30, 2024 in the Supreme Court of the
State of New York, Suffolk County (the “State Court Action”), Bold commenced this
action against Noogalights and its managing director, John Haustein, asserting
causes of action for breach of contract and defamation,2 as well as seeking an award
of attorneys’ fees. 	DE [1-1]. 	On February 27, 2024, Noogalights removed the State
Court Action to this Court based upon diversity jurisdiction pursuant to 28 U.S.C. §
1332. DE [1].
On 	December 	31, 	2024, 	Noogalights 	filed 	its 	Amended 	Answer 	with
counterclaims against Bold, including: (1) breach of contract; (2) breach of the implied
warranty of merchantability; (3) products liability for failure to warn; (4) false
2 The cause of action for defamation was subsequently voluntarily dismissed, as was John Haustein
as a Defendant. DE [7], [12], [17].
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advertising pursuant to N.Y. General Business Law (“G.B.L.”) § 350-A; (5) negligent
misrepresentation; (6) deceptive business practices pursuant to N.Y. G.B.L. § 349; (7)
tortious interference with contract; (8) negligence; (9) fraud; and (10) declaratory
judgment. See generally Am. Ans. On January 20, 2025, Noogalights filed the TPC
against Glaser, DE [65], asserting causes of action for: (1) false advertising pursuant
to N.Y. G.B.L. § 350; (2) negligent misrepresentation; (3) deceptive business practices
pursuant to N.Y. G.B.L. § 349; (4) tortious interference with contract; (5) negligence;
(6) products liability for failure to warn; and (7) fraud. 	TPC ¶¶ 39-76. 	Thus, each
cause of action in the TPC against Glaser is also asserted as a counterclaim against
Bold.
On March 18, 2025, Glaser filed the instant motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(6). DE [78]. Glaser claims that “the Third-Party Complaint is . . . an
attempt by Noogalights to pierce the ‘corporate veil’ of Bold Media so as to impose
liability on Glaser personally.” 	See Memorandum of Law of Matthew Glaser in
Support of Motion to Dismiss (“Glaser Mem.”), DE [78], at 4-5. According to Glaser,
Noogalights fails to allege that he “exercised complete domination over Bold Media,
or that he abused Bold Media’s corporate form to perpetrate a wrong, injustice, or
fraud against Noogalights.” Id. at 10. Noogalights counters that “[t]he claim against
Matthew Glaser rests on his participation in tortious acts, a basis for liability
independent of corporate veil-piercing.” 	See Noogalights Memorandum of Law in
Opposition to Motion (“Noogalights’s Opp’n”), DE [79], at 7. 	Noogalights further
asserts that the TPC “details Glaser’s direct participation in providing defective
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equipment, 	misrepresenting 	the 	equipment’s 	condition, 	and 	interfering 	with
Noogalights’ [sic] contract . . . .” Id. For the reasons set forth herein, Glaser’s motion
to dismiss the TPC is denied.
II. 	LEGAL STANDARD
To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint
must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” 	Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
1941 (2009) (quoting Bell Atl. Corp. v. Twombley, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974 (2007)). “[T]he standard for a motion to dismiss a complaint, counterclaim, and third-
party complaint is the same . . . .” Restellini v. Wildenstein Plattner Inst., Inc., No. 20 Civ.
4388(AT), 2021 WL 4340824, at *2 (S.D.N.Y. June 12, 2023). 	A claim is considered
plausible on its face “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” 	Ashcroft, 556 U.S. at 678, 129 S. Ct. at 1949. 	In deciding a motion to
dismiss, “a court must ‘accept all allegations in the complaint as true and draw all
inferences in the non-moving party’s favor.’’ U.S. ex rel. Siegel v. Roche Diagnostics
Corp., 988 F. Supp. 2d 341, 343 (E.D.N.Y. 2013) (quoting LaFaro v. New York
Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009)).
III. 	DISCUSSION
In 	his 	initial 	moving 	papers, 	Glaser 	does 	not 	address 	the 	merits 	of
Noogalights’s causes of action. Instead, he argues that there is no basis to pierce the
corporate veil and hold Glaser personally liable. 	See Glaser Mem. at 6-12. 	In his
reply, however, Glaser addresses, for the first time, the merits of Noogalights’s claims
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against him, arguing that they are inadequately pled. See Reply in Further Support
of Motion to Dismiss (“Glaser Reply Mem.”), DE [80], at 8-15. These arguments are
not properly before the Court, as “[i]t is well-established that ‘[a]rguments may not
be made for the first time in a reply brief.’’’ Alford v. City of New York, 413 F. Supp.
3d 99, 108 (E.D.N.Y. 2018) (quoting Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir.
1993)); see Colon v. City of New York, No. 11-CV-173(MKB), 2014 WL 1338730, at *9
(E.D.N.Y. Apr. 2, 2014) (“The Second Circuit has clearly stated that arguments raised
for the first time in reply papers or thereafter are properly ignored.”) (citing Watson
v. Geithner, 355 F. App’x 482, 483 (2d Cir. 2009)). 	Accordingly, the Court does not
address the merits of each cause of action that Noogalights asserts against Glaser
and, instead, considers only Glaser’s individual liability as a corporate officer.
Glaser 	argues 	that 	the 	claims 	against 	him 	must 	be 	dismissed 	because
Noogalights improperly seeks to pierce the corporate veil. See Glaser Mem. at 6-12.
A plaintiff seeking to pierce the corporate veil must allege “(1) the owners of the
corporation exercised complete dominion over the corporation with respect to the
transaction at issue, and (2) the domination was used to commit a fraud or wrong
that injured the party seeking veil piercing.” Zimnicki v. Krysiak Constr. Corp., No.
21-CV-4634(RPK)(JRC), 2023 WL 7000849, at *8 (E.D.N.Y. Aug. 29, 2023) (quoting
Dafeng Hengwei Textile Co. v. Liu, 720 F. App’x 83, 84 (2d Cir. 2018)). Determining
whether to pierce the corporate veil is a fact-intensive inquiry. Paguirigan v. Prompt
Nursing Emp. Agency LLC, 286 F. Supp. 3d 430, 441 (E.D.N.Y. 2017). “A complaint
seeking to pierce the corporate veil should not be resolved on a motion to dismiss
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unless it ‘is totally devoid of solid, nonconclusory allegations.’” 	Saidnia v. Nimbus
Mining LLC, No. 21-CV-7792(VSB), 2023 WL 7005037, at *7 (S.D.N.Y. Oct. 24, 2023)
(quoting Robles v. Copstat Sec., Inc., No. 08 Civ. 9572(SAS), 2009 WL 4403188, at *2
(S.D.N.Y. Dec. 2, 2009)).
Even where corporate veil piercing is inapplicable, however, under New York
law, corporate officers may be subject to individual liability for (1) “participat[ion] in
the commission of a tort,” or (2) where the corporation is the mere alter ego of the
owner or executives. Trisvan v. Heyman, 305 F. Supp. 3d 381, 407 (E.D.N.Y. 2018)
(quoting FLB, LLC v. Cellco P’ship, 536 F. App’x 132, 133 (2d Cir. 2013)); see Bano v.
Union Carbide Corp., 273 F.3d 120, 133 (2d Cir. 2001) (“Under New York law, ‘a
corporate officer who commits or participates in a tort, even if it is in the course of his
duties on behalf of the corporation, may be held individually liable.’”) (quoting
Lopresti v. Terwilliger, 126 F.3d 34, 42 (2d Cir. 1997)); N.Y.C. St. Tree Consortium,
Inc. v. Eber-Schmid, No. 07-CV-0348(BSJ), 2008 WL 11516553, at *7 n.11 (S.D.N.Y.
Apr. 21, 2008) (“In New York, corporate officers and directors can be liable for fraud
where they personally participate in the fraud, or have actual knowledge of it.”).
Noogalights’s allegations regarding Glaser’s individual participation in the
conduct alleged in this action are not particularly strong. 	To this end, Noogalights
inaccurately alleges that Glaser “represented that ‘he tests/reviews’ and ‘check[s]
everything.” 	TPC ¶ 14 (emphasis added). 	In reality, the text message that Third-
Party Plaintiff cites states “[w]e check everything before it goes to you.”3 See Answer
3 As the message is cited and relied upon in the TPC, it is incorporated by reference therein and may
be considered in deciding the instant motion. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d
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(“Ans.”), DE [14], Ex. B (emphasis added). 	While the difference is minor, the text
message does not ascribe sole responsibility for testing and reviewing to Glaser as
alleged in the TPC. 	Nevertheless, it also does not preclude a finding of Glaser’s
participation.
At the motion to dismiss stage – whether the correct phrasing of the message
is “he,” as alleged in the TPC, or “we,” as was actually used – there is, at the very
least, ambiguity regarding Glaser’s personal involvement, which may not be resolved
on the pleadings alone. 	Civil Rights Corps. v. Pestana, No. 21 Civ. 9128(VM), 2022
WL 2118191, at *12 (S.D.N.Y. June 13, 2022) (“A motion to dismiss pursuant to Rule
12(b)(6) is not the proper occasion for the Court to weigh differing interpretations of
an exhibit to [a pleading] . . . .”); Morillo v. JetBlue Airways Corp., No. 17-CV-
1524(CBA)(RML), 2019 WL 13276891, at *1 (E.D.N.Y. Feb. 7, 2019) (observing that,
in deciding a motion to dismiss, the Court “construes any ambiguities in the light
most favorable to the plaintiff”).
Moreover, 	Third-Party 	Plaintiff 	consistently 	alleges 	Glaser’s 	personal
involvement in the underlying conduct. 	See TPC ¶¶ 38, 42, 46, 53-56, 58-60, 63-65,
71-75. 	This includes allegations that Glaser recommended circumventing safety
measures and failing to make necessary repairs to the lights at issue, id. at ¶¶ 25-26,
Cir. 2010) (“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a
district court may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint.”); Moore v. Hadestown Broadway
Ltd. Liab. Co., 722 F. Supp. 3d 229, 244 (S.D.N.Y. 2024) (“The Court may . . . consider documents
integral to the complaint or incorporated by reference into the complaint on a motion to dismiss under
Rule 12(b)(6).”).
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misleading Noogalights in order to convince it to enter inter into the Agreement, id.
at ¶¶ 26, 39, 46, failing to warn Noogalights of the danger of equipment he knew to
be unsafe, id. at ¶¶ 63-65, 71, and, ultimately, causing unsafe equipment to be
delivered to Noogalights. 	Id. at ¶ 39. 	The veracity of these allegations will be
addressed in discovery. 	At the motion to dismiss stage, however, the allegations,
accepted as true, support an inference of Glaser’s personal involvement. See Bahnsen
v. 	Town 	of 	Brookhaven, 	No. 	17-CV-4554(SJF)(AYS), 	2018 	WL 	5077167, 	at 	*7
(E.D.N.Y. July 31, 2018) (“While Plaintiff’s pleading is thin, the Court cannot, at the
motion to dismiss stage, determine the factual veracity of his claim . . . .”); Lepore v.
NL Brand Holdings LLC, No. 16 Civ. 8115(GBD), 2017 WL 4712633, at *6 (S.D.N.Y.
Sept. 28, 2017) (“The purpose of this analysis is not for this Court, at this stage in the
pleadings, to engage in its own fact discovery or make a final, or even preliminary,
determination as to the veracity or validity of Plaintiffs’ allegations. That is not the
court’s role in deciding a motion to dismiss.”). 	Accordingly, discovery related to the
third-party claims against Glaser is appropriate and Glaser’s motion to dismiss is
denied.
V. 	CONCLUSION
For the reasons set forth herein, Glaser’s motion to dismiss the Third-Party
Complaint is denied. 	Glaser is instructed to file an answer to the Third-Party
Complaint by April 10, 2026.
Dated: 	Central Islip, New York
March 11, 2026
SO ORDERED
/s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge
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