The Richard and Anne Rubin Family Trust v. Attention to Detail Construction Corp. et al

UNITED STATES DISTRJCT COURT
EASTERN DISTRJCT OF NEW YORK
THE RJCHARD AND ANNE RUBIN FAMILY
TRUST,
Plaintiff,
-against-
ATTENTION TO DETAIL CONSTRUCTION
CORP. and CHRJSTOPHER MARTIN,
Defendants.
MEMORANDUM & ORDER
23-CV-9390 (NGG) (SIL)
NICHOLAS G. GARAUFIS, United States District Judge.
This action arises out of a home renovation gone wrong. Plaintiff
The Richard and Anne Rubin Family Trust ("Plaintiff') claims
that Defendants Christopher Martin ("Martin") and his compa-
nies Attention to Detail Construction Corp. ("ADC"), and now
AAA Attn. to Detail Construction Corp. ("AAA"), failed to com-
plete the renovation of Plaintiffs summer home on time, on
budget, and according to industry standards. After Judge Rachel
P. Kovner granted in part and denied in part Martin and ADC's
("Defendants") motion to dismiss the Complaint, Plaintiff filed a
First Amended Complaint ("FAC"), which Defendants seek to dis-
miss. With that motion pending, Plaintiff now seeks leave to file
a Second Amended Complaint ("SAC").
The court GRANTS Plaintiffs motion for leave to amend its FAC
to add AAA as a defendant in its SAC. The court GRANTS in part
Defendants' pending Motion to Dismiss ("MTD") as it pertains to
Plaintiffs claims against Martin and DISMISSES these claims.
I. 	BACKRGOUND
The facts underlying this dispute are set out in detail in Judge
Kovner's previous Memorandum & Order granting in part and
denying in part Defendants' first motion to dismiss. (Mem. & Ord.
1
Case 2:23-cv-09390-NGG-SIL Document 55 Filed 03/10/26 Page 1 of 11 PageID #:
<pageID>

("M&O") (Dkt. 29) at 2-3.) Judge Kovner ended her Order by
granting Plaintiffs request for leave to amend. (Id. at 17.) Plain-
tiff timely filed the FAC. (See FAC (Dkt. 31).) As relevant here,
the FAC contains a handful of new paragraphs alleging that Mar-
tin "is abusing and disregarding the corporate form to avoid
liability in this action." (Id. 'f'f 27-33.) And while Plaintiff had
previously brought its breach-of-contract and unjust-enrichment
claims against only Defendant ADC, (see Compl. (Dkt. 1) 'f'f 25-
36), Plaintiff now levels those claims against Martin as well, (see
FAC 'f'f 34-47).
On July 7, 2025, Defendants filed their motion to dismiss these
claims. (See MTD (Dkt. 42-1).) They argued that the FAC should
be dismissed under Federal Rule of Civil Procedure 12(b) (6) for
failure to state a claim and under Rule 12(b) (7) for failure to join
a necessary party. (Id. at 1.) Plaintiff opposed this motion on the
merits. (See Pl's. Opp'n (Dkt. 42-9).)
On September 25, 2025, Plaintiff requested a pre-motion confer-
ence to further amend the Complaint in light of new evidence
revealed through discovery. (See Letter Mot. for PMC (Dkt. 45).)
With Judge Kovner's consent, Plaintiff subsequently filed a mo-
tion seeking permission to file a SAC so that it could add a new
defendant, AM. (Pl.'s Mot. for Leave to Amd. ("Mot.") (Dkt. 49-
5) at 2.) Plaintiff asserts (and Defendants agree) that this new
company-not 	Defendant 	ADC-"performed 	the 	renovation
work at Plaintiff[']s home." (Id.; see MTD at 3 & n.1 (noting that
the contract "was actually entered into by the Trust and AM as
ADC had not even been formed at that time").) 1
Defendants filed a motion "in partial opposition" to Plaintiff's re-
quest. (See Defs.' Partial Opp'n to Leave to Amd. ("Partial Opp'n")
1 See infra Section III.A for a more complete discussion of the creation of
each entity and confusion surrounding the alleged participation of each in
the contracting and construction process.
2
Case 2:23-cv-09390-NGG-SIL Document 55 Filed 03/10/26 Page 2 of 11 PageID #:
<pageID>

(Dkt. 50-1) at 1.) Defendants explain that they "do not object to
Plaintiffs request for leave to amend their Complaint a second
time," but they nonetheless argue that "the proposed Second
Amended 	Complaint is 	palpably insufficient 	and 	devoid 	of
merit." (Id.) Defendants maintain that Plaintiff "cannot hold ADC
and AAA jointly and severally liable, as this is a breach of contract
claim and both entities did not enter jointly into an agreement
with Plaintiff[] to perform work at the Property." (Id.) And De-
fendants add that, if Plaintiff is given leave to file a SAC, this
court should still "consider the merits of the pending motion to
dismiss as they pertain to Martin individually." (Id. at 4-5.) Plain-
tiff did not reply.
II. 	LEGAL STANDARD
In assessing the futility of amending a complaint, the court ap-
plies the same standard when ruling on a motion to dismiss made
under Rule 12(b) (6). See Milanese v. Rust-Oleum Corp., 244 F.3d
104, 110 (2d Cir. 2001) (observing that "leave to amend will be
denied as futile only if the proposed new claim cannot withstand
a 12(b)(6) motion to dismiss"). 2 That Rule permits defendants
to move to dismiss a complaint for "failure to state a claim upon
which relief can be granted." Fed. R. Civ. P. 12(b)(6). To avoid
dismissal on that basis, a complaint must "state a claim to relief
that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The facial "plausibility standard is not akin to a probabil-
ity requirement," but it requires plaintiffs to allege sufficient facts
to allow "the court to draw the reasonable inference that the de-
fendant is liable for the misconduct alleged." Id. (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556-57 (2007)). "A well-pleaded
complaint may proceed even if it strikes a savvy judge that actual
2 When quoting cases, unless otherwise noted, all citations and internal
quotation marks are omitted, and any addition of emphasis or alteration
to the original in quoted text is adopted.
3
Case 2:23-cv-09390-NGG-SIL Document 55 Filed 03/10/26 Page 3 of 11 PageID #:
<pageID>

proof [of the facts alleged] is improbable, and that a recovery is
very remote and unlikely." Twombly, 550 U.S. at 556.
When considering a motion under Rule 12(b) (6), a court may
consider only (i) the complaint itself, (ii) documents either at-
tached to the complaint or incorporated in it by reference, and
(iii) documents the plaintiff relied on and knew of when bringing
suit. See, e.g., ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d
87, 98 (2d Cir. 2007); Sira v. Morton, 380 F.3d 57, 67 (2d Cir.
2004). The court must accept all facts alleged in the complaint
as true. Iqbal, 556 U.S. at 678. The court, however, is not obli-
gated to adopt "mere conclusory statements" or "threadbare
recitals of the elements of a cause of action" that are not "sup-
ported by factual allegations." Id. at 678-79.
III. 	APPLICATION
a. 	Joint and Several liability
Defendants argue in two pages that leave to amend should be
denied insofar as Plaintiffs proposed SAC adds a theory of joint
and several liability. (Partial Opp'n 2-4.) Given the current state
of the record and briefing materials, however, the court permits
Plaintiff to plead a theory of joint and several liability in its SAC.
First, a primer: "Joint and several liability, primarily a tort law
concept, imposes on each wrongdoer responsibility for the entire
damages awarded, even though a particular wrongdoer's con-
duct may have caused only a portion of the loss. The rationale
for such liability is that the wrongdoers are considered part of a
joint enterprise and a mutual agency such that the act of one is
the act of all and liability for all that is done is visited upon each."
Matter of Seagroatt Floral Co., Inc., 78 N.Y.2d 439, 448 (1991).
Defendants contend that "unless both AM and ADC jointly en-
tered into a written or oral agreement with Plaintiff to perform
the subject work at the Property, joint and several liability cannot
4
Case 2:23-cv-09390-NGG-SIL Document 55 Filed 03/10/26 Page 4 of 11 PageID #:
<pageID>

attach as a matter of law." (Partial Opp'n at 3.) That is largely
accurate. See On Time Constr.J Inc. v. 329 E. SBJ LLC, 188 N.Y.S.3d
45, 47-48 (1st Dep't 2023) (trial court erred by treating defend-
ants as jointly and severally liable when defendants were not
parties to each other's contracts); 12 Williston on Contracts §
36:5 (4th ed. 2025) ("As a general rule, copromisors are liable
jointly if all of them have promised the entire performance which
is the subject of the contract."). The court adds only that "all of
the parties who induce a breach of contract are jointly and sev-
erally liable to the plaintiff." On Time Constr., 188 N.Y.S.3d at 48;
Hornstein v. Podwitz, 254 N.Y. 443,449 (1930).
The problem is that the current record, taken as a whole, does
not show that formal agreements were executed between Plain-
tiff 	and 	either 	AAA 	or 	ADC. 	Defendants 	attached 	two
"agreements" to their motion to dismiss. (See Dec. 2019 Agree-
ment 	(Dkt. 	42-5); 	Aug. 	2022 Agreement 	(Dkt. 	42-6)). 	But
neither of these agreements is signed by Plaintiff. (See Dec. 2019
Agreement at 18-19 (blank signature pages); Aug. 2022 Agree-
ment at 9-10 (same).) Defendant Martin's deposition testimony
corroborates the notion that no formal contract was executed be-
tween the parties. Martin attested that "there were multiple
agreements 	and 	multiple 	new 	agreements, 	work 	revisions,
changes" but that he was not aware "of any document that is
signed by [him] and signed by the Rubins regarding the prop-
erty." (See Pl.'s Ex. A (Dkt. 49-2) at 71:25-73:4.) Judge Kovner's
previous M&O similarly noted that it was unclear whether any
formal agreement between the parties was ever formed. 	(See
M&O at 10.) Accordingly, any contract alleged must have been
created by performance. See Restatement (Second) of Contracts
§ 50(2) (recognizing contracts can be formed by performance);
Oscar Prods.J 	Inc. 	v. 	Zacharius, 	893 F. 	Supp. 	250, 	256 n.6
(S.D.N.Y. 1995) (interpreting New York law to find that "mutual
assent between the parties, even though oral or informal, to ex-
change 	acts 	or 	promises 	is 	sufficient 	to 	create 	a 	binding
5
Case 2:23-cv-09390-NGG-SIL Document 55 Filed 03/10/26 Page 5 of 11 PageID #:
<pageID>

contract") (citing Consarc Corp. v. Marine Midland Bank, N.A.,
996 F.2d 568, 570 (2d Cir.1993)).
That said, Plaintiffs pleadings do suggest that Defendant ADC
did not exist as an entity until after any contract between the par-
ties 	was 	formed. 	The 	FAC 	explains 	that Defendant Martin
approached Plaintiff in December 2019 "to undertake the obliga-
tion to renovate a home." (FAC 'l 12.) "Later that same month"-
again, December 2019-Defendant ADC supposedly "agreed to
perform work, labor and provide materials to completely reno-
vate the Property as general contractor." (Id. 'l 14.) But Exhibit B
to Plaintiff's FAC shows that ADC did not exist until a month
later. (See Ex. B (Dkt. 31-2) at ECF p. 2.) Exhibit C, by contrast,
shows that AM was formed in 2011. (See Ex. C (Dkt. 31-3) at
ECF p. 2.) Therefore in December 2019, the only corporation that
could have formed a contract was AM.
However, the court declines to deny amendment for the joint and
several liability claim as futile at this stage of the proceedings.
Between the murkiness of ADC's involvement in this dispute, and
the scant briefing on the issue of joint and several liability, such
a ruling would be premature. For one thing, there is no signed
contract between any parties. (See Dec. 2019 Agreement at 18-
19; Aug. 2022 Agreement at 9-10.) For another, several of De-
fendants' 	past 	representations 	regarding 	the 	relationship
between ADC and AM are ambiguous, including representations
by Martin that presumably led Plaintiff to wire $50,000 to ADC
on one occasion. (See Exh. 7, Wire Transfers (Dkt. 42-8) at ECF
p. 2 (wire addressed to "Attention to Detail"); cf id. at ECF p. 3
(wire addressed to "AM Attention to Detail"); see also Exh. A at
Tr. 87:20-88:11 (noting one wire was sent to "Attention to Detail
and not AAN'); id. at Tr. 92:24-96:5 (Martin acknowledging that
he did not specifically distinguish "between the two companies"
to Plaintiff)). For another still, other non-parties discussed in the
transcript refer to the working entity as ADC. (See id. at Tr. 121:2-
6
Case 2:23-cv-09390-NGG-SIL Document 55 Filed 03/10/26 Page 6 of 11 PageID #:
<pageID>

11 (testimony of a Mr. Romanelli describing the work performed
as ''by Attention to Detail Construction, Corp.").) So the court
permits Plaintiff to amend its complain to add AAA as a party and
declines Defendants' invitation, at this moment, to rule that
Plaintiff cannot maintain a claim for joint and several liability as
against AAA and ADC.
b. 	Relief as to Martin
The court heeds Defendants' request to consider the pending mo-
tion to dismiss Plaintiff's claims as to Martin and GRANTS the
motion to dismiss Plaintiff's claims as against Martin personally.
To be sure, "an amended pleading ordinarily supersedes the orig-
inal and renders it of no legal effect." In re Crysen/Montenay
Energy Co., 226 F.3d 160, 162 (2d Cir. 2000) (citing Harris v.
City of New York, 186 F.3d 243,249 (2d Cir. 1999)). But district
courts still retain discretion to "consider the merits" of the under-
lying motion to dismiss "in light of the amended complaint."
Illiano v. Mineola Union Free Sch. Dist., 585 F. Supp. 2d 341, 349
(E.D.N.Y. 2008) (quoting Roller Bearing Co. of Am., Inc. v. Am.
Software, Inc., 570 F. Supp. 2d 376, 384 (D. Conn. 2008)). The
court exercises that discretion here and finds that Plaintiff cannot
state a claim against Martin.
Plaintiff seeks to bring breach-of-contract and unjust-enrichment
claims against all Defendants, including Martin. These claims are
futile as against Martin.
First, corporate officers like Martin "may not be held personally
liable on contracts of their corporations, provided they did not
purport to bind themselves individually under such contracts."
Westminster Const. Co. v. Sherman, 554 N.Y.S.2d 300, 301 (2d
Dep't 1990); JT Queens Carwash, Inc. v. JDW & Assocs., Inc., 45
N.Y.S.3d 100, 104 (2016) (collecting cases for this proposition).
7
Case 2:23-cv-09390-NGG-SIL Document 55 Filed 03/10/26 Page 7 of 11 PageID #:
<pageID>

Plaintiffs proposed SAC alleges that Plaintiff entered into a con-
tract with ADC (see SAC 'f 37)-not Martin. So Martin cannot be
held individually liable on Plaintiffs breach-of-contract claim.
Second, Plaintiff's unjust enrichment claim as against Martin
must be dismissed because either MA or ADC is the entity who
"charged" Plaintiff for their services. (See SAC 'f 46 ("[T]he Cor-
poration was paid $604,265.31 by the Plaintiff[].").) Martin thus
"neither 	billed 	those 	fees 	nor 	established 	any 	entitlement
thereto" which vitiates any unjust enrichment claim. Am. Exp.
Travel Related Servs. Co. v. N. Atl. Res.J Inc., 691 N.Y.S.2d 403,
404 (1st Dep't 1999). And, in any event, it is well-established that
"a nonsignatory to a contract cannot be held liable where there
is an express contract covering the same subject matter" under a
theory of unjust enrichment. Seneca Pipe & Paving Co. v. S. Seneca
Cent. Sch. Dist., 880 N.Y.S.2d 807, 808 (4th Dep't 2009); see also
Glob. World Realty) Inc. v. Zubli, 196 N.Y.S.3d 765, 768 (2d Dep't
2023) (unjust enrichment claim "precluded by the existence of a
contract governing the subject matter of the dispute"). It is un-
disputed that Martin is not a signatory to any contract and that
the contract between Plaintiff and MA or ADC covers "the same
subject matter" for which Plaintiff wishes to hold Martin liable:
the renovation of the property. Accordingly, Martin cannot be
held individually liable for Plaintiffs unjust-enrichment claim.
Plaintiff also attempts to assert its breach-of-contract and unjust-
enrichment claims against Martin based on piercing the corpo-
rate veil. "[T]he standard for veil-piercing is very demanding,"
and "disregard of the corporate form is warranted only in ex-
traordinary circumstances." Capmark Fin. Grp. Inc. v. Goldman
Sachs Credit Partners LP, 491 B.R. 335,347 (S.D.N.Y. 2013) (dis-
cussing New York law). A party seeking to pierce the corporate
veil under New York law must sufficiently allege that (1) "the
owner exercised complete domination over the corporation with
respect to the transaction at issue," and (2) "such domination
8
Case 2:23-cv-09390-NGG-SIL Document 55 Filed 03/10/26 Page 8 of 11 PageID #:
<pageID>

was used to commit a fraud or wrong that injured the party seek-
ing to pierce the veil." MAG Portfolio Consult, GMBH v. Merlin
Biomed Grp. LLC, 268 F.3d 58, 63 (2d Cir. 2001). In assessing
whether the first element of "domination" is met, the Second Cir-
cuit has identified a non-exhaustive list of ten factors to consider:
Id.
(1) disregard of corporate formalities; 	(2) inadequate
capitalization; (3) intermingling of funds; (4) overlap in
ownership, officers, directors, and personnel; (5) com-
mon office space, address and telephone numbers of
corporate entities; (6) the degree of discretion shown by
the allegedly dominated corporation; (7) whether the
dealings between the entities are at arms length; 	(8)
whether the corporations are treated as independent
profit centers; (9) payment or guarantee of the corpora-
tion's 	debts 	by 	the 	dominating 	entity[;] 	and 	(10)
intermingling of property between the entities.
Judge Kovner previously rejected Plaintiffs attempt at veil-pierc-
ing. (See M&O at 10-14.) This court does so again today. As
before, the only allegations in both the FAC and proposed SAC
bearing on Martin's control over either ADC or AM are conclu-
sory. The SAC baldly states that ADC "has disregarded corporate
formalities, is inadequately capitalized, and intermingled funds
with another affiliate nonparty AM Attn to Detail Construction
Corp.," but it provides no facts to support that assertion. (See SAC
'[ 28.)
The SAC also alleges that ADC and AM "share the same office
space," share "the same ownership--Christopher Martin," and
"conduct the exact same business, construction renovation." (Id.
'129.) But "sharing a common claim of ownership or common
office address, standing alone, is insufficient to pierce the corpo-
rate veil." Anhui Konka Green Lighting Co. v. Green Logic LED Blee.
Supply, Inc., No. 18-CV-12255 (MKV) (KHP), 2021 WL 4264033,
9
Case 2:23-cv-09390-NGG-SIL Document 55 Filed 03/10/26 Page 9 of 11 PageID #:
<pageID>

at *5 (S.D.N.Y. Sept. 20, 2021) (citing Kalin v. Xanabo, Inc, 526
F. Supp. 2d 392,404 (S.D.N.Y. 2007)).
Plaintiffs other allegations-that MA has been named a defend-
ant in two similar lawsuits, (see SAC'[ 30), that "the only home
improvement license produced in this action named only'' MA,
(id. '131), that ADC did not exist at the time the parties agreed
on the renovation terms, (see id. 'I 32), and that ADC "hired sev-
eral subcontractors" and "failed to pay at least one of those
subcontractors" (id. '[ 33)-do not speak to whether Martin "ex-
ercised complete domination over the corporation with respect
to the transaction at issue," and whether "such domination was
used to commit a fraud or wrong that injured the party seeking
to pierce the veil." MAG Portfolio Consult, 268 F.3d at 63. Plaintiff
also fails to allege, "supported by factual allegations," that it was
harmed by a specific fraud Martin achieved by allegedly abusing
the corporate form. Iqbal, 556 U.S. at 678-79. The allegation that
Martin is "avoiding liability'' in this action is a "conclusory state-
ment." Id.
Accordingly, Plaintiff cannot state a claim against Martin under
a veil-piercing theory, either. The claims against Martin are
therefore DISMISSED.
10
Case 2:23-cv-09390-NGG-SIL Document 55 Filed 03/10/26 Page 10 of 11 PageID #:
<pageID>

s/Nicholas G. Garaufis
IV. 	CONCLUSION
Plaintiffs 	motion 	to 	file 	a 	Second 	Amended 	Complaint 	is
GRANTED. Defendant's motion to dismiss is GRANTED IN PART.
The court DISMISSES the claims against Defendant Martin, as
the proposed Second Amended Complaint continues to fail to al-
lege any viable claim against him.
SO ORDERED.
Dated: 	Brooklyn, New York
March r() , 2026
11
NICHOIAS G. GARAUFIS
United States District Judge
Case 2:23-cv-09390-NGG-SIL Document 55 Filed 03/10/26 Page 11 of 11 PageID #:
<pageID>