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FILED: KINGS COUNTY CLERK 0772172021 04:28 PM INDEX NO. 508593/2021
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/21/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY. OF KINGS CIVIL TERM: COMMERCIAL PART 8
ween ne een
NORTHEAST MASONRY WORK LLC,
Plaintiff, Decision and order
- against - Index No. 508593/21
AMEC LLC; & NATIONWIDE MUTUAL
INSURANCE COMPANY,
Defendants, July 20, 2021
Se----- en ee en
PRESENT: HON. LEON RUCHELSMAN
The defendants have moved pursuant to CPLR §3211 seeking to
dismiss the complaint on the grounds the plaintiff does not
maintain. standing and in any event Kings County is not the proper
venue. The plaintiff has cross-moved seeking to dismiss the
defendant's affirmative defenses. The motions have been opposed
respectively. Papers were submitted by the parties and arguments
held. After reviewing all the arguments this court now makes the
following determination.
The plaintiff, a corporation authorized to do. business in
Connecticut entered into an agreement with defendant to engage in
stone and masonry work at various construction sites in
Westchester County. This lawsuit was commenced wherein the
plaintiff alleges he is owed substantial sums for work performed
for which they have not been paid. The defendant has now filed
this motion seeking to dismiss the complaint on the grounds the
plaintiff is not licensed to do business in New York and thus
does not maintain standing to initiate the action. The plaintiff
lof 4
FILED: KINGS COUNTY CLERK 0772172021 04:28 PM INDEX NO. 508593/2021
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/21/2021
opposes the motion arguing it did not conduct continuous business
in New York and thus may maintain standing.
Conclusions of Law
It is well settled that upon a motion to dismiss the court
must determine, accepting the allegations of the complaint as
true, whether the party can succeed upon any reasonable view of
those facts (Davids v. State, 159 AD3d 987, 74 NYS3d 288 [2d
Dept., 2018]). Further, all the allegations in the complaint are
deemed. true and all reasonable inferences may be drawn in favor
of the plaintiff (Dunleavy v. Hilton Hall Apartments Co., LLC, 14
AD3d 479, 789 NYS2d 164 [2d Dept., 2005]).
Pursuant to BCL §1312 and Limited Liability Law §808 a
foreign corporation not authorized to do business in the state of
New York may not maintain any actions within the state (Rexgament
mi nters Inc. v. Ne Realty Holding Trust, 171 AD2d 736, 567
NYS2d 292 [2d Dept., 1991]}. The precise definition of ‘doing
business’ is fact specific, and must be decided on a case by case
basis (Highfill Inc., v. Bruce and ivis Inc., 50 AD3d 742, 855
NY¥S2d 635 (2d Dept., 2008]). There are no precise activities
that demonstrate ‘doing business’ and the party relying on the
statute must demonstrate that the activities of the foreign
corporation were systematic and regular and manifested a
continuity of activity within the jurisdiction (Construction
2 0f 4
INDEX NO. 508593/2021
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/21/2021
Specialists, Inc., v. Hartford Insurance Company, 97 AD2d 808,
468 NYS2d 675 [2d Dept., 1983]). Thus, in Uribe v. Merchants
Bank of New York, 266 AD2d 21, 697 NYS2d 279 [1°* Dept., 1999
the court held that the foreign corporation was. not ‘doing
business’ in New York where there was no evidence that the
foreign corporation maintained any business office, maintained a
business telephone number, owned réal estate and had any
employees in the state. The court found that the activities of
the foreign corporation consisted of “solicitation of business
and facilitating the sale and delivery of its merchandise
incidental to its business in interstate and international
commerce” and the court. concluded that was insufficient to
demonstrate the foreign corporation was ‘doing business’ in New
York. Moreover, without evidence of doing business there is a
presumption that. the corporation then does business in its area
of incorporation (Household Bank (SB), NA v. Mitchell, 12 AD3d
568, 785 NYS2d 116 [2d Dept., 2004]). To rebut that presumptior
the party seeking to prevent the foreign business from
maintaining jurisdiction has the burden of demonstrating the
business activities of the foreign corporation were systematic
and regular as to manifest continuity of activity within New York
(Gemstar Canada Inc. v. George A, Fuller Co. Inc.; 127 AD3d
689, 6 NYS3d 552 [2d Dept., 2015]).
The defendant has presented evidence that from October 2017
3 of 4
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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/21/2021
through. February 2019 the plaintiff was actively engaged at
construction sites located at 147 Plaza Avenue, 188 Waverly
Avenue, 270 Waverly Avenue and 206-208 Waverly Avenue all located
in. Mamaroeck in Westchester County. Thus; evidence of systematic
and continuous présence in thé state has been demonstrated
clearly establishing the plaintiff was ‘doing business’ in the
state of New York. The plaintiff asserts the defendant has only
presented “one transaction” of doing business (see, Affirmation
in Support of Cross Motion and in Opposition to Motion to
Dismiss, $11). However, as noted, the plaintiff was present in
New York for a year and a half and that can hardly qualify as a
sole transaction. Therefore, the plaintiff conducted sufficient
business. in New York and since it was not authorized to conduct
business it cannot maintain this lawsuit. Further, there is no
defect which the plaintiff may cure (id at §13).
Therefore, the motion seeking to dismiss the complaint based
upon.a lack of standing is granted. All remaining motions are
now rendered. moot.
So ordered.
ENTER
DATED: July 20, 2021
Brooklyn N.Y. Hon. Leon Ruchelsman
JSC
4 of 4
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FILED: KINGS COUNTY CLERK 0772172021 04:28 PM INDEX NO. 508593/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/21/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY. OF KINGS CIVIL TERM: COMMERCIAL PART 8 ween ne een NORTHEAST MASONRY WORK LLC, Plaintiff, Decision and order - against - Index No. 508593/21 AMEC LLC; & NATIONWIDE MUTUAL INSURANCE COMPANY, Defendants, July 20, 2021 Se----- en ee en PRESENT: HON. LEON RUCHELSMAN The defendants have moved pursuant to CPLR §3211 seeking to dismiss the complaint on the grounds the plaintiff does not maintain. standing and in any event Kings County is not the proper venue. The plaintiff has cross-moved seeking to dismiss the defendant's affirmative defenses. The motions have been opposed respectively. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination. The plaintiff, a corporation authorized to do. business in Connecticut entered into an agreement with defendant to engage in stone and masonry work at various construction sites in Westchester County. This lawsuit was commenced wherein the plaintiff alleges he is owed substantial sums for work performed for which they have not been paid. The defendant has now filed this motion seeking to dismiss the complaint on the grounds the plaintiff is not licensed to do business in New York and thus does not maintain standing to initiate the action. The plaintiff lof 4 FILED: KINGS COUNTY CLERK 0772172021 04:28 PM INDEX NO. 508593/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/21/2021 opposes the motion arguing it did not conduct continuous business in New York and thus may maintain standing. Conclusions of Law It is well settled that upon a motion to dismiss the court must determine, accepting the allegations of the complaint as true, whether the party can succeed upon any reasonable view of those facts (Davids v. State, 159 AD3d 987, 74 NYS3d 288 [2d Dept., 2018]). Further, all the allegations in the complaint are deemed. true and all reasonable inferences may be drawn in favor of the plaintiff (Dunleavy v. Hilton Hall Apartments Co., LLC, 14 AD3d 479, 789 NYS2d 164 [2d Dept., 2005]). Pursuant to BCL §1312 and Limited Liability Law §808 a foreign corporation not authorized to do business in the state of New York may not maintain any actions within the state (Rexgament mi nters Inc. v. Ne Realty Holding Trust, 171 AD2d 736, 567 NYS2d 292 [2d Dept., 1991]}. The precise definition of ‘doing business’ is fact specific, and must be decided on a case by case basis (Highfill Inc., v. Bruce and ivis Inc., 50 AD3d 742, 855 NY¥S2d 635 (2d Dept., 2008]). There are no precise activities that demonstrate ‘doing business’ and the party relying on the statute must demonstrate that the activities of the foreign corporation were systematic and regular and manifested a continuity of activity within the jurisdiction (Construction 2 0f 4 INDEX NO. 508593/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/21/2021 Specialists, Inc., v. Hartford Insurance Company, 97 AD2d 808, 468 NYS2d 675 [2d Dept., 1983]). Thus, in Uribe v. Merchants Bank of New York, 266 AD2d 21, 697 NYS2d 279 [1°* Dept., 1999 the court held that the foreign corporation was. not ‘doing business’ in New York where there was no evidence that the foreign corporation maintained any business office, maintained a business telephone number, owned réal estate and had any employees in the state. The court found that the activities of the foreign corporation consisted of “solicitation of business and facilitating the sale and delivery of its merchandise incidental to its business in interstate and international commerce” and the court. concluded that was insufficient to demonstrate the foreign corporation was ‘doing business’ in New York. Moreover, without evidence of doing business there is a presumption that. the corporation then does business in its area of incorporation (Household Bank (SB), NA v. Mitchell, 12 AD3d 568, 785 NYS2d 116 [2d Dept., 2004]). To rebut that presumptior the party seeking to prevent the foreign business from maintaining jurisdiction has the burden of demonstrating the business activities of the foreign corporation were systematic and regular as to manifest continuity of activity within New York (Gemstar Canada Inc. v. George A, Fuller Co. Inc.; 127 AD3d 689, 6 NYS3d 552 [2d Dept., 2015]). The defendant has presented evidence that from October 2017 3 of 4 INDEX NO. 508593/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/21/2021 through. February 2019 the plaintiff was actively engaged at construction sites located at 147 Plaza Avenue, 188 Waverly Avenue, 270 Waverly Avenue and 206-208 Waverly Avenue all located in. Mamaroeck in Westchester County. Thus; evidence of systematic and continuous présence in thé state has been demonstrated clearly establishing the plaintiff was ‘doing business’ in the state of New York. The plaintiff asserts the defendant has only presented “one transaction” of doing business (see, Affirmation in Support of Cross Motion and in Opposition to Motion to Dismiss, $11). However, as noted, the plaintiff was present in New York for a year and a half and that can hardly qualify as a sole transaction. Therefore, the plaintiff conducted sufficient business. in New York and since it was not authorized to conduct business it cannot maintain this lawsuit. Further, there is no defect which the plaintiff may cure (id at §13). Therefore, the motion seeking to dismiss the complaint based upon.a lack of standing is granted. All remaining motions are now rendered. moot. So ordered. ENTER DATED: July 20, 2021 Brooklyn N.Y. Hon. Leon Ruchelsman JSC 4 of 4