Preview
FILED: KINGS COUNTY CLERK 10/24/2018 06:20 PM INDEX NO. 510798/2018
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2018
Supreme Court of the State of New York
COUNTY OF KINGS
------------------------------------------------ -- X Index No. 510798/2018
Atlantic Casualty Insurance Company, :
: PT: 81
Plaintiff, : Hon.: J. Landicino
:
- against - AFFIRMATION
: IN SUPPORT OF
: OMNIBUS CROSS MOTION AND IN
Eastern Fruit & Vegetables, Inc., : OPPOSITION TO PLAINTIFF'S
: MOTION
Defendant. :
____________ ----------------------- X
Nathaniel J. Costa, an attorney licensed to practice law in the State of New York,
affirms pursuant to CPLR § 2106 that:
1. Your affiant is an associate of L. Blake Morris & Associates, attorneys for the
defendant herein and as such I am familiar with the facts of the matter at bar. I make
fully
this affirmation in support of defendant's omnibus cross-motion for dismissal or judicial stay
pursuant to CPLR § 3211(a)(1), BCL § 1312, and CPLR §§ 8502 and 8503, and in
opposition to plaintiff's motion for summary judgment pursuant to CPLR §3212.
24th
2. This action was commenced on or about the day of May, 2018 by the purchase of
an index number and electronic filing of the summons and complaint for the sum of
$93,141,09 with interest from an unspecified date. The defendant interposed an answer on
29th 9th
the day of June, 2018, with a counterclaim. The plaintiff interposed a reply on the Of
August, 2018. Summons, complaint, answer, and reply are attached to the plaintiff's motion
as Exhibit D.
3. Plaintiff in its complaint fails to allege corporate status, in contravention of CPLR §
3015(b). Plaintiff also alleges that it isauthorized to write insurance policies in the State of
New York. After a thorough search of both the New York State Department of State
Corporation Filings database, and public records maintained by the New York State
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Department of Financial Services, plaintiff is neither registered to do business in the State of
New York nor licensed to write insurance policies in the State of New York.
4. Plaintiff in itscomplaint refers between to the amount
interchangeably referring
premiums" premiums."
claimed as "unpaid and "audited Plaintiff its complaint does not
by
allege that itever conducted an audit of defendant's commercial general insurance
liability
policy.
5. While plaintiff's complaint correctly alleges six years of insurance coverage
(Complaint para. 3), it failsto allege that itconducted an audit of the defendant's insurance
5th
policy. Plaintiff first alleges in the Affidavit of Suzanne Parrish, sworn to the
September 2018 ("Parrish Affidavit,"), that "an anmml audit was conducted which revealed
plaintiff"
additional exposure to the (Parrish Affidavit at paragraph ten). Defendant directly
controverts this allegation by the Affidavit of defendant president Asif Jhangir, sworn to the
24th
day of October, 2018 ("Jhangir Affidavit"), in which defendant states that only one audit
was ever conducted in the six years defeñdañt carried insurance underwritten by the
defendant, and at no point in that period did the defendant alter its business practices. See
Jhangir Affidavit at para. four, et seq.
PLAINTIFF HAS FAILED TO MEET PRIMA FACIE BURDEN FOR SUMMARY
JUDGMENT
6. On a motion for summary judgment, the proponent of the motion must establish its
claim or defense "sufficiently to warrant the court as a matter of law in directing judgment in
favor"
[its] CPLR §3212(b). "The proponent of a summary judgment motion must make a
prima facie showing of entitlement to judgment as a matter of law, tendering sufficient
evidence to eliminate material issues of fact from the case. Once the proponent of the
any
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motion has made a prima facie of entitlement to the burden
showing summary judgment,
shifts to the party opposing the motion to demonstrate, through admissable the
evidence,
existence of a factual issue requiring a trial of the action. Vermette v. Kenworth Truck Co.,
506 NYS2d 313 [1986]; Forrest v. Jewish Guild for the Blind, 765 NYS2d 326 [1st Dept
2003] affd 786 NYS2d 382 [2004].
7. Each affidavit submitted on a summary judgment motion must be based on the
affiant's personal knowledge, and should state the basis for the affiant's knowledge. Hirsh v
Bert's Bikes and Sports, Inc., 227 AD2d 956 (4th Dept 1996); S.J Capelin Associates, Inc. v
Globe Manufacturing Corp., 34 NY2d 338 (1974); Grullon v City of New York, 297 AD2d
261 (1st Dept 2002).
belief"
8. Statements made on "information and are inadmissible and cannot be
considered by the court in granting summary judgment. Nor may such statements constitute
the sole basis for denying a motion for summary judgment. Berger v Fogarty, 51 Misc2d 628
(Sup Ct N.Y. Cnty 1965). Statements made by a party without offering any basis for the
belief"
party's knowledge are treated as statements made on "information and and they may
not be considered by the court as evidence in support of or in opposition to a motion for
summary judgment. Grullon v City of New York, 297 AD2d 261 (1st Dept 2002).
9. An affidavit submitted on behalf of a corporate client should be from an employee
who has personal knowledge of the facts contained therein. Officers of the corporation
who gain their knowledge from the reports of other employees do not have persoñal
knowledge, and thus their affidavits are insufficient. Republic National Bank of New York v
Luis Winston, Inc., 483 N.Y.S.2d 311 (1st Dep't 1985).
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10. Plaintiff's Manager"
deponent Suzanne Parrish identifies as an "Audit for plaintiff
corporation, however she fails to describes her duties as such that would form a basis upon
which to allege personal knowledge, as required CPLR supra.
by § 4518,
11. The Parrish Affidavit is signed and notarized in the State of North Carolina a
by
Notary Public commissioned in that state. The affidavit does not contain a certificate as
required by CPLR §2309(c) and is therefore defective and not before the Court. Firstcom
Broad Servs. v New York Sound Inc., 184 Misc. 2d 524 (N.Y. Civ. Ct. 2000); PRA III,LLC v
Gonzalez, 54 A.D.3d 917, (2d Dept. 2008).
12. The instant action concerns an insurance premium audit that occurred in the sixth
year of a commercial general liability insurance policy. The Parrish Affidavit regularly
references the insurance contract between the parties by which plaintiff alleges a right to
audit defendant's policy, however, the insurance contract which forms the entire
underlying basis for this action has not been presented to this Court for a motion for
summary judgment. Furthermore, since the plaintiff is not an insurance company licensed
by the State of New York, the policy is not a public record on file with the New York State
Department of Financial Services. See Plaintiff's Exhibit D, Complaint at paragraph 1
("Plaintiff is duly authorized to issue policies of insurance in the State of New York"); and
Parrish Aff. at paragraphs 9 et seq.
13. In addition to lacking the contract that allegedly gives the plaintiff the right to audit
defendant's insurance policy and makes defendant liable as alleged, the plaintiff also fails to
include any methodology or accounting showing precisely how the audit was conducted and
how the policy of the defendant, which did not change its business model over that period,
increased nearly tenfold. Plaintiff instead provides an audit summary produced by unknown
4
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individual Joseph Solutions,"
Reich, possibly an employee of "Overland an unknown entity
(plaintiff's Exhibit A), and statements of account that do not substantiate or elucidate how
costs were computed and reference, in a 2017 produced document, Morstan General Agency
Inc., which upon information and belief is an entity that ceased to conduct business on or
about August 2, 2016. See Plaintiff's Exhibits A, B, and C; infra.
PLAINTIFF LACKS CAPACITY TO MAINTAIN ACTION UNDER BCL § 1312
14. Plaintiff, both in its complaint or the Parrish Affidavit, makes no allegations
regarding corporate status. The only allegation regarding plaintiff's corporate status lies in
the Affirmation of Joseph Schur dated Septeinber 24, 2018 (Schur Affirmation), wherein the
plaintiff by itsattorney alleges that itis "a corporation engaged in the insurance business
Carolina."
with its place of business in the County of Wayne, State of North See Schur
Affirmation at para. 4.
15. Defendant raised as its second affirmative defense that the plaintiff is not licensed by
the New York State Department of Fiñañce to issue insurance policies in the State of New
York. See plaintiff's Exhibit D, Answer, at paragraph 5.
16. Defendant raised as its fourth affirmative defense that the plaintiff fails to allege state
of corporation or other organization, or principal place of business. See plaintiff's Exhibit D,
Answer, at paragraph 7.
17. Defendant raised as its sixth affirmative defense that the plaintiff lacks capacity to
commence and maintain this action. See plaintiff's Exhibit D, Answer, at paragraph 9.
18. New York Business Corporations Law § 1312(a) provides:
A foreign corporation doing business in this state without authority shall not
maintain action or special proceeding in this state unless and until such
any
corporation has been authorized to do business in this state and ithas paid to
the state all fees and taxes imposed under the tax law or any related statute, as
5
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defined in section eighteen hundred of such law, as well as penalties and
interest charges related thereto, accrued against the corporation.
19. Failure of a corporation business in New York to with BCL
doing comply § 1312(a)
affects its legal capacity to maintain an action in New York; it does not affect jurisdiction.
Hot Roll Mfg. Co. v Cerone Equipment Co., 38 A.D.2d 339 (3d Dept 1972). An action an
by
unqualified foreign corporation cannot be maintained unless and until it qualifies and makes
restitution of all fees for the years in which it did business without authority, and the
prohibition extends to contracts made outside of the State of New York. Wm. G. Roe & Co. v
State, 43 Misc. 2d 417 (N.Y. Ct. Cl. 1964) Garden State Brickface & Stone Co. v Oradell
Constr. Corp., 44 Misc. 2d 22 (N.Y. App. Term 1964); Oxford Paper Co. v S. M Liquidation
Co. (N.Y. Sup. Ct. 1965).
20. According to its website, the plaintiff does business in the State of New York in a
permanent, meaningful, and continuous manner, through various insurance product lines
including but not limited Commercial General Liability Insurance, which are distributed
exclusively through Managing General Agencies, and are serviced by Wholesale Agents. See
www.atlanticcasualtyinsurance.com/about; www.atlanticcasualtyinsurance.com/products.
Inc."
21. Plaintiff's Exhibits B and C list "Morstan General Agency (plaintiff's Exhibit
Agency,"
B), "Morstan General and "Morstan General Agency of NY Inc. a division of
Hull,"
(plaintiff's Exhibit C) located at 600 Community Drive, Manhasset, New York, 11030
(collectively "Morstan") as the wholesale agents for defendant's insurance policy with
plaintiff. Both Exhibits list Morstan's Department of Finance License Number as 310146,
however a search of records maintained by the Department of Finance showed no entity with
that license number.
6
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22. Furthermore, plaintiff's Exhibit B is dated 18, and Exhibit C's two
July 2017,
documents are dated October 10, 2017 and August 2, 2017, however Morstan has been
registered with the New York Secretary of State as Jahel 1, Inc. since June 20, 2016 (See
Department of State Report for Morstan General Agency, Inc., attached hereto as Exhibit A.)
While not dispositive of a violation of BCL § 1312, it isnotable that plaintiff, while
underwriting policies and soliciting business through agents in the State of New York as an
unregistered foreign corporation, did not keep its recards to date to that itsagents
up verify
were correctly registered within the State at allrelevant times herein.
23. Defendant thus requests, in light of plaintiff's lack of capacity to inaintain this action,
that the action be dismissed pursuant to CPLR §3211(a)(1) and BCL §1312(a) pending
plaintiff's compliance with statutory requirements.
DEFENDANT REQUESTS RELIEF PURSUANT TO CPLR ARTICLE 85
24. CPLR § 8501(a) provides that upon motion from the defendant without notice, "the
court or a judge thereof shall order security for costs to be given by the plaintiffs where none
of them is a dornestic corporation, a foreign corporation licensed to do business in the state or
made."
a resident of the state when the motion is
25. CPLR §8502 provides in part that, "Until security for costs is given pursuant to the
stayed,"
order of the Court, allproceedings other than to review or vacate such order shall be
and that ifsuch security has not been given within thirty days from the date of the order, "the
court may dismiss the complaint upon motion by the defendant, and award costs in his
favor."
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26. CPLR § 8503 provides that the security for costs as outlined in Article 85 is $500.00
for actions ceremeñced within the of New York. Clement v 147 A.D.3d 39 (2d
City Durban,
Dept. 2016).
27. Where as here the plaintiff is a foreign corporation not registered with the New York
Secretary of State, defendant requests that the court order a stay of all proceedings pursuant
to CPLR §8502, and order plaintiff to pay security for costs within thirty days of such order
pursuant to CPLR §8503.
Wherefore, plaintiff hereby requests that the court grant defendant's omnibus motion
for dismissal or stay pursuant to CPLR § 3211(a)(1), BCL §1312, CPLR § 8502, and CPLR
§8503, and deny plaintiffs motion for summary judgment in its entirety with prejudice,
together with such other and further relief as to this court may deem just, proper and
equitable.
Dated: Brooklyn, New York
October 24, 2018
Nathaniel . Costa, Esq.
L. Blake orris & Associates
Attorneys for Defendant/Cross-Movant
1214 Cortelyou Rd.
Brooklyn, NY 11218-5404
Tel. # (718) 826-8401
8
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Preview
FILED: KINGS COUNTY CLERK 10/24/2018 06:20 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2018 Supreme Court of the State of New York COUNTY OF KINGS ------------------------------------------------ -- X Index No. 510798/2018 Atlantic Casualty Insurance Company, : : PT: 81 Plaintiff, : Hon.: J. Landicino : - against - AFFIRMATION : IN SUPPORT OF : OMNIBUS CROSS MOTION AND IN Eastern Fruit & Vegetables, Inc., : OPPOSITION TO PLAINTIFF'S : MOTION Defendant. : ____________ ----------------------- X Nathaniel J. Costa, an attorney licensed to practice law in the State of New York, affirms pursuant to CPLR § 2106 that: 1. Your affiant is an associate of L. Blake Morris & Associates, attorneys for the defendant herein and as such I am familiar with the facts of the matter at bar. I make fully this affirmation in support of defendant's omnibus cross-motion for dismissal or judicial stay pursuant to CPLR § 3211(a)(1), BCL § 1312, and CPLR §§ 8502 and 8503, and in opposition to plaintiff's motion for summary judgment pursuant to CPLR §3212. 24th 2. This action was commenced on or about the day of May, 2018 by the purchase of an index number and electronic filing of the summons and complaint for the sum of $93,141,09 with interest from an unspecified date. The defendant interposed an answer on 29th 9th the day of June, 2018, with a counterclaim. The plaintiff interposed a reply on the Of August, 2018. Summons, complaint, answer, and reply are attached to the plaintiff's motion as Exhibit D. 3. Plaintiff in its complaint fails to allege corporate status, in contravention of CPLR § 3015(b). Plaintiff also alleges that it isauthorized to write insurance policies in the State of New York. After a thorough search of both the New York State Department of State Corporation Filings database, and public records maintained by the New York State 1 of 8 FILED: KINGS COUNTY CLERK 10/24/2018 06:20 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2018 Department of Financial Services, plaintiff is neither registered to do business in the State of New York nor licensed to write insurance policies in the State of New York. 4. Plaintiff in itscomplaint refers between to the amount interchangeably referring premiums" premiums." claimed as "unpaid and "audited Plaintiff its complaint does not by allege that itever conducted an audit of defendant's commercial general insurance liability policy. 5. While plaintiff's complaint correctly alleges six years of insurance coverage (Complaint para. 3), it failsto allege that itconducted an audit of the defendant's insurance 5th policy. Plaintiff first alleges in the Affidavit of Suzanne Parrish, sworn to the September 2018 ("Parrish Affidavit,"), that "an anmml audit was conducted which revealed plaintiff" additional exposure to the (Parrish Affidavit at paragraph ten). Defendant directly controverts this allegation by the Affidavit of defendant president Asif Jhangir, sworn to the 24th day of October, 2018 ("Jhangir Affidavit"), in which defendant states that only one audit was ever conducted in the six years defeñdañt carried insurance underwritten by the defendant, and at no point in that period did the defendant alter its business practices. See Jhangir Affidavit at para. four, et seq. PLAINTIFF HAS FAILED TO MEET PRIMA FACIE BURDEN FOR SUMMARY JUDGMENT 6. On a motion for summary judgment, the proponent of the motion must establish its claim or defense "sufficiently to warrant the court as a matter of law in directing judgment in favor" [its] CPLR §3212(b). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate material issues of fact from the case. Once the proponent of the any 2 2 of 8 FILED: KINGS COUNTY CLERK 10/24/2018 06:20 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2018 motion has made a prima facie of entitlement to the burden showing summary judgment, shifts to the party opposing the motion to demonstrate, through admissable the evidence, existence of a factual issue requiring a trial of the action. Vermette v. Kenworth Truck Co., 506 NYS2d 313 [1986]; Forrest v. Jewish Guild for the Blind, 765 NYS2d 326 [1st Dept 2003] affd 786 NYS2d 382 [2004]. 7. Each affidavit submitted on a summary judgment motion must be based on the affiant's personal knowledge, and should state the basis for the affiant's knowledge. Hirsh v Bert's Bikes and Sports, Inc., 227 AD2d 956 (4th Dept 1996); S.J Capelin Associates, Inc. v Globe Manufacturing Corp., 34 NY2d 338 (1974); Grullon v City of New York, 297 AD2d 261 (1st Dept 2002). belief" 8. Statements made on "information and are inadmissible and cannot be considered by the court in granting summary judgment. Nor may such statements constitute the sole basis for denying a motion for summary judgment. Berger v Fogarty, 51 Misc2d 628 (Sup Ct N.Y. Cnty 1965). Statements made by a party without offering any basis for the belief" party's knowledge are treated as statements made on "information and and they may not be considered by the court as evidence in support of or in opposition to a motion for summary judgment. Grullon v City of New York, 297 AD2d 261 (1st Dept 2002). 9. An affidavit submitted on behalf of a corporate client should be from an employee who has personal knowledge of the facts contained therein. Officers of the corporation who gain their knowledge from the reports of other employees do not have persoñal knowledge, and thus their affidavits are insufficient. Republic National Bank of New York v Luis Winston, Inc., 483 N.Y.S.2d 311 (1st Dep't 1985). 3 3 of 8 FILED: KINGS COUNTY CLERK 10/24/2018 06:20 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2018 10. Plaintiff's Manager" deponent Suzanne Parrish identifies as an "Audit for plaintiff corporation, however she fails to describes her duties as such that would form a basis upon which to allege personal knowledge, as required CPLR supra. by § 4518, 11. The Parrish Affidavit is signed and notarized in the State of North Carolina a by Notary Public commissioned in that state. The affidavit does not contain a certificate as required by CPLR §2309(c) and is therefore defective and not before the Court. Firstcom Broad Servs. v New York Sound Inc., 184 Misc. 2d 524 (N.Y. Civ. Ct. 2000); PRA III,LLC v Gonzalez, 54 A.D.3d 917, (2d Dept. 2008). 12. The instant action concerns an insurance premium audit that occurred in the sixth year of a commercial general liability insurance policy. The Parrish Affidavit regularly references the insurance contract between the parties by which plaintiff alleges a right to audit defendant's policy, however, the insurance contract which forms the entire underlying basis for this action has not been presented to this Court for a motion for summary judgment. Furthermore, since the plaintiff is not an insurance company licensed by the State of New York, the policy is not a public record on file with the New York State Department of Financial Services. See Plaintiff's Exhibit D, Complaint at paragraph 1 ("Plaintiff is duly authorized to issue policies of insurance in the State of New York"); and Parrish Aff. at paragraphs 9 et seq. 13. In addition to lacking the contract that allegedly gives the plaintiff the right to audit defendant's insurance policy and makes defendant liable as alleged, the plaintiff also fails to include any methodology or accounting showing precisely how the audit was conducted and how the policy of the defendant, which did not change its business model over that period, increased nearly tenfold. Plaintiff instead provides an audit summary produced by unknown 4 4 of 8 FILED: KINGS COUNTY CLERK 10/24/2018 06:20 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2018 individual Joseph Solutions," Reich, possibly an employee of "Overland an unknown entity (plaintiff's Exhibit A), and statements of account that do not substantiate or elucidate how costs were computed and reference, in a 2017 produced document, Morstan General Agency Inc., which upon information and belief is an entity that ceased to conduct business on or about August 2, 2016. See Plaintiff's Exhibits A, B, and C; infra. PLAINTIFF LACKS CAPACITY TO MAINTAIN ACTION UNDER BCL § 1312 14. Plaintiff, both in its complaint or the Parrish Affidavit, makes no allegations regarding corporate status. The only allegation regarding plaintiff's corporate status lies in the Affirmation of Joseph Schur dated Septeinber 24, 2018 (Schur Affirmation), wherein the plaintiff by itsattorney alleges that itis "a corporation engaged in the insurance business Carolina." with its place of business in the County of Wayne, State of North See Schur Affirmation at para. 4. 15. Defendant raised as its second affirmative defense that the plaintiff is not licensed by the New York State Department of Fiñañce to issue insurance policies in the State of New York. See plaintiff's Exhibit D, Answer, at paragraph 5. 16. Defendant raised as its fourth affirmative defense that the plaintiff fails to allege state of corporation or other organization, or principal place of business. See plaintiff's Exhibit D, Answer, at paragraph 7. 17. Defendant raised as its sixth affirmative defense that the plaintiff lacks capacity to commence and maintain this action. See plaintiff's Exhibit D, Answer, at paragraph 9. 18. New York Business Corporations Law § 1312(a) provides: A foreign corporation doing business in this state without authority shall not maintain action or special proceeding in this state unless and until such any corporation has been authorized to do business in this state and ithas paid to the state all fees and taxes imposed under the tax law or any related statute, as 5 5 of 8 FILED: KINGS COUNTY CLERK 10/24/2018 06:20 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2018 defined in section eighteen hundred of such law, as well as penalties and interest charges related thereto, accrued against the corporation. 19. Failure of a corporation business in New York to with BCL doing comply § 1312(a) affects its legal capacity to maintain an action in New York; it does not affect jurisdiction. Hot Roll Mfg. Co. v Cerone Equipment Co., 38 A.D.2d 339 (3d Dept 1972). An action an by unqualified foreign corporation cannot be maintained unless and until it qualifies and makes restitution of all fees for the years in which it did business without authority, and the prohibition extends to contracts made outside of the State of New York. Wm. G. Roe & Co. v State, 43 Misc. 2d 417 (N.Y. Ct. Cl. 1964) Garden State Brickface & Stone Co. v Oradell Constr. Corp., 44 Misc. 2d 22 (N.Y. App. Term 1964); Oxford Paper Co. v S. M Liquidation Co. (N.Y. Sup. Ct. 1965). 20. According to its website, the plaintiff does business in the State of New York in a permanent, meaningful, and continuous manner, through various insurance product lines including but not limited Commercial General Liability Insurance, which are distributed exclusively through Managing General Agencies, and are serviced by Wholesale Agents. See www.atlanticcasualtyinsurance.com/about; www.atlanticcasualtyinsurance.com/products. Inc." 21. Plaintiff's Exhibits B and C list "Morstan General Agency (plaintiff's Exhibit Agency," B), "Morstan General and "Morstan General Agency of NY Inc. a division of Hull," (plaintiff's Exhibit C) located at 600 Community Drive, Manhasset, New York, 11030 (collectively "Morstan") as the wholesale agents for defendant's insurance policy with plaintiff. Both Exhibits list Morstan's Department of Finance License Number as 310146, however a search of records maintained by the Department of Finance showed no entity with that license number. 6 6 of 8 FILED: KINGS COUNTY CLERK 10/24/2018 06:20 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2018 22. Furthermore, plaintiff's Exhibit B is dated 18, and Exhibit C's two July 2017, documents are dated October 10, 2017 and August 2, 2017, however Morstan has been registered with the New York Secretary of State as Jahel 1, Inc. since June 20, 2016 (See Department of State Report for Morstan General Agency, Inc., attached hereto as Exhibit A.) While not dispositive of a violation of BCL § 1312, it isnotable that plaintiff, while underwriting policies and soliciting business through agents in the State of New York as an unregistered foreign corporation, did not keep its recards to date to that itsagents up verify were correctly registered within the State at allrelevant times herein. 23. Defendant thus requests, in light of plaintiff's lack of capacity to inaintain this action, that the action be dismissed pursuant to CPLR §3211(a)(1) and BCL §1312(a) pending plaintiff's compliance with statutory requirements. DEFENDANT REQUESTS RELIEF PURSUANT TO CPLR ARTICLE 85 24. CPLR § 8501(a) provides that upon motion from the defendant without notice, "the court or a judge thereof shall order security for costs to be given by the plaintiffs where none of them is a dornestic corporation, a foreign corporation licensed to do business in the state or made." a resident of the state when the motion is 25. CPLR §8502 provides in part that, "Until security for costs is given pursuant to the stayed," order of the Court, allproceedings other than to review or vacate such order shall be and that ifsuch security has not been given within thirty days from the date of the order, "the court may dismiss the complaint upon motion by the defendant, and award costs in his favor." 7 7 of 8 FILED: KINGS COUNTY CLERK 10/24/2018 06:20 PM INDEX NO. 510798/2018 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/24/2018 26. CPLR § 8503 provides that the security for costs as outlined in Article 85 is $500.00 for actions ceremeñced within the of New York. Clement v 147 A.D.3d 39 (2d City Durban, Dept. 2016). 27. Where as here the plaintiff is a foreign corporation not registered with the New York Secretary of State, defendant requests that the court order a stay of all proceedings pursuant to CPLR §8502, and order plaintiff to pay security for costs within thirty days of such order pursuant to CPLR §8503. Wherefore, plaintiff hereby requests that the court grant defendant's omnibus motion for dismissal or stay pursuant to CPLR § 3211(a)(1), BCL §1312, CPLR § 8502, and CPLR §8503, and deny plaintiffs motion for summary judgment in its entirety with prejudice, together with such other and further relief as to this court may deem just, proper and equitable. Dated: Brooklyn, New York October 24, 2018 Nathaniel . Costa, Esq. L. Blake orris & Associates Attorneys for Defendant/Cross-Movant 1214 Cortelyou Rd. Brooklyn, NY 11218-5404 Tel. # (718) 826-8401 8 8 of 8