Second, defendants note that while plaintiff alleges that it is a Delaware limited liability company, it fails to allege that it has authority to do business in this state. Rather, Aronow contends that plaintiff alleges only isolated lapses in the corporate form. Both defendants contend that the prior order dismissing the enforcement proceeding is res judicata. Moreover, defendants claim that the six-year statute of limitations bars any claims against them under the lease. As a preliminary matter, the court rejects defendants' attack on plaintiff's standing.
Lack of capacity is an affirmative defense.
Defendants bear the burden of proof. Similarly, plaintiff need not plead its authorization to do business in New York. In any event, plaintiff has submitted proof of its authorization in its opposition papers. In order to plead a prima facie claim for piercing the corporate veil, the plaintiff must allege particularized facts which tend to show that defendant is conducting business in his individual capacity and moving his personal funds in and out of the corporation without regard to the corporate form. The foregoing elements are plainly evident in the complaint.