Supreme Court, Appellate Division, Second Department, New York.
S & T BANK, Assignee, etc., Appellant,
v.
SPECTRUM CABINET SALES, INC., Respondent.
Feb. 2, 1998.
Assignee brought action to recover money for goods sold and delivered by its
assignor, a Pennsylvania corporation. The Supreme Court, Nassau County,
O'Connell, J., dismissed action on ground assignor had no authority to do
business in New York, and assignee appealed. The Supreme Court, Appellate
Division, held that assignor was not "doing business" in New York at time it
shipped goods to New York, so as to bar assignee's action.
Reversed.
West Headnotes
[1] Corporations 665(.5)
101k665(.5) Most Cited Cases
Pennsylvania corporation, as assignor, was not "doing business" in New York at
time it shipped goods to New York, so as to bar assignee's action to recover
money for goods sold and delivered under statute precluding corporation that is
not authorized to do business in New York from maintaining action there;
corporation neither maintained office, telephone, or sales representative in New
York, nor did it do any advertising in New York. McKinney's Business Corporation
Law § 1312(a).
[2] Corporations 661(6)
101k661(6) Most Cited Cases
Purpose of statute precluding corporation that is not authorized to do business
in New York from maintaining action there is to regulate foreign corporations
which are doing business within State and not to enable avoidance of contractual
obligations. McKinney's Business Corporation Law § 1312(a).
**642 Akin & Smith, New York City (Derek T. Smith and Zafer A. Akin, of
counsel), for appellant.
Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum and Brent
J. Kaufman, of counsel), for respondent.
Before MANGANO, P.J., and JOY, ALTMAN and LUCIANO, JJ.
MEMORANDUM BY THE COURT.
*373 In an action to recover money for goods sold and delivered by the
plaintiff's assignor, the plaintiff appeals from an order of the Supreme Court,
Nassau County (O'Connell, J.), dated December 2, 1996, which granted the
defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(3), on the
ground, inter alia, that the plaintiff's assignor, as a Pennsylvania
corporation, lacked authority to do business in New York State pursuant to
Business Corporation Law § 1312.
ORDERED that the order is reversed, on the law, with costs, the defendant's
motion is denied, and the complaint is reinstated.
[1] The defendant successfully moved at the Supreme Court to dismiss the
complaint on the ground, inter alia, that the plaintiff's assignor,
International Kitchens, Ltd. (hereinafter International), a Pennsylvania
corporation, lacked the capacity to sue (see, CPLR 3211[a][3] ) pursuant to
Business Corporation Law § 1312(a), since it was doing business in this State
without authority. Business Corporation Law § 1312(a) "constitutes a bar to
the maintenance of an action by a foreign corporation found to be 'doing
business' in New York without the required authorization to do business there"
(Great White Whale Adv. v. First Festival Prods., 81 A.D.2d 704, 706, 438
N.Y.S.2d 655; Interline Furniture v. Hodor Indus. Corp., 140 A.D.2d 307, 527
N.Y.S.2d 544). However, the party relying upon this statutory barrier bears
the burden of proving (see, Great White Whale Adv. v. First Festival Prods.,
supra) that the corporation's business activities in New York "were not just
casual or occasional," but "so systematic and regular as to manifest continuity
of activity in the jurisdiction" (Matthews Ltd. v. Robert Mabey Inc., 117 A.D.2d
943, 944, 499 N.Y.S.2d 254; Construction Specialties v. Hartford Ins. Co., 97
A.D.2d 808, 468 N.Y.S.2d 675; see also, International Fuel & Iron Corp. v.
Donner Steel Co., 242 N.Y. 224, 151 N.E. 214).
[2] *374 Contrary to the defendant's contention, its motion papers did not
establish, prima facie, that International was doing business in New York at the
time that the parties entered into the contract being sued upon (see,
International Fuel and Iron Corp. v. Donner Steel Co., 242 N.Y. 224, 229- 231,
151 N.E. 214). Although International shipped a large amount of its product
into New York, it neither maintained an office, a telephone, or a sales
representative in New York. Nor did it do any advertising in New York. Under
these circumstances, "there is no showing that plaintiff conducted continuous
activities in [New York] essential to its corporate business" (Von Arx A.G. v.
Breitenstein, 52 A.D.2d 1049, 1050, 384 N.Y.S.2d 895, affd. 41 N.Y.2d 958, 394
N.Y.S.2d 876, 363 N.E.2d 582). The purpose of Business Corporation Law §
1312(a) is "to regulate foreign corporations which are 'doing business' within
the State [and] not * * * to enable the avoidance of contractual obligations"
(Von Arx AG. v. C.J. Breitenstein Co., 41 N.Y.2d supra, at 960, 394 N.Y.S.2d
876, 363 N.E.2d 582). Accordingly, "the presumption that the plaintiff **643
does business, not in New York but in its State of incorporation has not been
overcome" (Construction Specialties v. Hartford Ins. Co., supra, at 808, 468
N.Y.S.2d 675). Therefore, the Supreme Court erred in granting the defendant's
motion to dismiss the complaint.
668 N.Y.S.2d 641, 247 A.D.2d 373, 1998 N.Y. Slip Op. 01224
END OF DOCUMENT
Supreme Court, Appellate Division, Second Department, New York.S & T BANK, Assignee, etc., Appellant,v.SPECTRUM CABINET SALES, INC., Respondent.
Feb. 2, 1998.
Assignee brought action to recover money for goods sold and delivered by its assignor, a Pennsylvania corporation. The Supreme Court, Nassau County, O'Connell, J., dismissed action on ground assignor had no authority to do business in New York, and assignee appealed. The Supreme Court, Appellate Division, held that assignor was not "doing business" in New York at time it shipped goods to New York, so as to bar assignee's action.
Reversed.
West Headnotes
[1] Corporations 665(.5)101k665(.5) Most Cited Cases
Pennsylvania corporation, as assignor, was not "doing business" in New York at time it shipped goods to New York, so as to bar assignee's action to recover money for goods sold and delivered under statute precluding corporation that is not authorized to do business in New York from maintaining action there; corporation neither maintained office, telephone, or sales representative in New York, nor did it do any advertising in New York. McKinney's Business Corporation Law § 1312(a).
[2] Corporations 661(6)101k661(6) Most Cited Cases
Purpose of statute precluding corporation that is not authorized to do business in New York from maintaining action there is to regulate foreign corporations which are doing business within State and not to enable avoidance of contractual obligations. McKinney's Business Corporation Law § 1312(a). **642 Akin & Smith, New York City (Derek T. Smith and Zafer A. Akin, of counsel), for appellant.
Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum and Brent J. Kaufman, of counsel), for respondent.
Before MANGANO, P.J., and JOY, ALTMAN and LUCIANO, JJ.
MEMORANDUM BY THE COURT.
*373 In an action to recover money for goods sold and delivered by the plaintiff's assignor, the plaintiff appeals from an order of the Supreme Court, Nassau County (O'Connell, J.), dated December 2, 1996, which granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(3), on the ground, inter alia, that the plaintiff's assignor, as a Pennsylvania corporation, lacked authority to do business in New York State pursuant to Business Corporation Law § 1312.
ORDERED that the order is reversed, on the law, with costs, the defendant's motion is denied, and the complaint is reinstated.
[1] The defendant successfully moved at the Supreme Court to dismiss the complaint on the ground, inter alia, that the plaintiff's assignor, International Kitchens, Ltd. (hereinafter International), a Pennsylvania corporation, lacked the capacity to sue (see, CPLR 3211[a][3] ) pursuant to Business Corporation Law § 1312(a), since it was doing business in this State without authority. Business Corporation Law § 1312(a) "constitutes a bar to the maintenance of an action by a foreign corporation found to be 'doing business' in New York without the required authorization to do business there" (Great White Whale Adv. v. First Festival Prods., 81 A.D.2d 704, 706, 438 N.Y.S.2d 655; Interline Furniture v. Hodor Indus. Corp., 140 A.D.2d 307, 527 N.Y.S.2d 544). However, the party relying upon this statutory barrier bears the burden of proving (see, Great White Whale Adv. v. First Festival Prods., supra) that the corporation's business activities in New York "were not just casual or occasional," but "so systematic and regular as to manifest continuity of activity in the jurisdiction" (Matthews Ltd. v. Robert Mabey Inc., 117 A.D.2d 943, 944, 499 N.Y.S.2d 254; Construction Specialties v. Hartford Ins. Co., 97 A.D.2d 808, 468 N.Y.S.2d 675; see also, International Fuel & Iron Corp. v. Donner Steel Co., 242 N.Y. 224, 151 N.E. 214).
[2] *374 Contrary to the defendant's contention, its motion papers did not establish, prima facie, that International was doing business in New York at the time that the parties entered into the contract being sued upon (see, International Fuel and Iron Corp. v. Donner Steel Co., 242 N.Y. 224, 229- 231, 151 N.E. 214). Although International shipped a large amount of its product into New York, it neither maintained an office, a telephone, or a sales representative in New York. Nor did it do any advertising in New York. Under these circumstances, "there is no showing that plaintiff conducted continuous activities in [New York] essential to its corporate business" (Von Arx A.G. v. Breitenstein, 52 A.D.2d 1049, 1050, 384 N.Y.S.2d 895, affd. 41 N.Y.2d 958, 394 N.Y.S.2d 876, 363 N.E.2d 582). The purpose of Business Corporation Law § 1312(a) is "to regulate foreign corporations which are 'doing business' within the State [and] not * * * to enable the avoidance of contractual obligations" (Von Arx AG. v. C.J. Breitenstein Co., 41 N.Y.2d supra, at 960, 394 N.Y.S.2d 876, 363 N.E.2d 582). Accordingly, "the presumption that the plaintiff **643 does business, not in New York but in its State of incorporation has not been overcome" (Construction Specialties v. Hartford Ins. Co., supra, at 808, 468 N.Y.S.2d 675). Therefore, the Supreme Court erred in granting the defendant's motion to dismiss the complaint.
668 N.Y.S.2d 641, 247 A.D.2d 373, 1998 N.Y. Slip Op. 01224
END OF DOCUMENT