” Highfill, Inc, v, Bruce & Iris, Inc., 50 A.D.3d 742, 743 (2d Dep't 2008) (quoting Commodity Ocean Transp. Corp, of New York v. Royce, 221 A.D.2d 406, 407 (2d Dep't 1995)). “A defendant relying upon Business Corporation Law § 1312(a) as a statutory barrier to a plaintiff's lawsuit ‘bears the burden of proving that the [plaintiff-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[.]”' Id. (quoting S & T Bank v. Spectrum Cabinet Sales, Inc., 247 A.D.2d 373, 373 (2d Dep't 1998)). “Absent sufficient evidence to establish that a plaintiff is doing business in this State, ‘the presumption is that the plaintiff is doing business in its State of incorporation .. . and not in New York[.]”' Id. at 743-44 (quoting Cadle Co. v. Hoffman, 237 A.D.2d 555, 555 (2d Dep't 1997). “Non-compliance with [N.Y. Bus. Corp. Law § 1312(a)] is an affirmative defense, and a defendant seeking to invoke it bears the burden of establishing that the plaintiff has failed to meet the section's requirements.”

Absent sufficient evidence to establish that a plaintiff is doing business in this State, "the presumption is that the plaintiff is doing business in its State of incorporation . . . and not in New York." Cadle Co. v. Hoffman, 237 A.D.2d 555, 555 (2d Dep't 1997). "The purpose of section 1312 of the Business Corporation Law and its predecessor statutory provisions is not to enable defendants to avoid contractual obligations but to regulate such foreign corporations which are in fact conducting business within the State so that they shall not be doing business under more advantageous terms than those allowed a corporation of this State."

"Absent sufficient evidence to establish that a plaintiff is doing business in this [S]tate, 'the presumption is that... plaintiff is doing business in its State of incorporation... and not in New York" (Highfill, Inc. v Bruce & Iris, Inc., 50 A.D.3d at 743-744, quoting Cadle Co. v Hoffman, 237 A.D.2d 555, 555 [2d Dept 1997]). Defendants' motion to dismiss is therefore denied without prejudice.

A defendant relying upon Business Corporation Law § 1312 (a) as a statutory barrier to a plaintiffs lawsuit "bears the burden of proving that the [plaintiff] 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'" ( S T Bank v Spectrum Cabinet Sales, 247 AD2d 373, 373, quoting Peter Matthews, Ltd. v Robert Mabey, Inc., 117 AD2d 943, 944). Absent sufficient evidence to establish that a plaintiff is doing business in this state, "the presumption is that the plaintiff is doing business in its State of incorporation . . . and not in New York" ( Cadle Co. v Hoffman, 237 AD2d 555).

Leave to amend the complaint was properly denied since the proposed amendment was without merit. Furthermore, plaintiffs' hope of uncovering constitutional violations during discovery is insufficient to defeat summary judgment (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223; Cadle Co. v. Hoffman, 237 A.D.2d 555). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

The plaintiff is entitled to summary judgment on the issue of liability since the speculative assertions by the defendant concerning the New York business activities of the plaintiff failed to raise an issue of fact as to whether the plaintiff is prohibited from maintaining this action pursuant to Business Corporation Law § 1312 (a) ( see, Cadle Co. v. Hoffman, 237 A.D.2d 555). Absent proof establishing that the plaintiff is doing business in New York, the presumption is that the plaintiff is doing business in its State of incorporation, Connecticut, and not in New York ( see, Construction Specialties v. Hartford Ins. Co., 97 A.D.2d 808).

"Absent adequate proof to establish that the plaintiff is doing business in New York, the presumption is that the plaintiff is doing business in its state of incorporation...." Cadle Co. v. Hoffman, 655 N.Y.S.2d 633, 634 (2d Dept. 1997). "The mere maintenance of an action by such a foreign corporation does not constitute 'doing business' within the State."

(1) Maintaining or defending any action or proceeding, whether judicial, administrative, arbitrative or otherwise, or effecting settlement thereof or the settlement of claims or disputes. Absent adequate proof to establish that plaintiff is doing business in New York, the presumption is that plaintiff is doing business in its state of incorporation, New Jersey ( Cadle Company v. Hoffman 237 A.D.2d 555 ). In this case, defendant has not alleged any other fact that would suggest that plaintiff is doing business in New York.

Absent proof establishing that the plaintiff is doing business in New York, it is presumed that the plaintiff is doing business in its State of incorporation and not in New York (see Cadle Co. v Hoffman, 237 AD2d 555, 555 [2d Dept 1997]). The party invoking the statutory barrier bears the burden of proving 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" (Interline Furniture, Inc. v Hodor Industries, Corp., 140 AD2d 307, 307 [2d Dept 1988]).

Absent adequate proof to establish that Caixin is doing business in New York, the presumption is that Caixin is doing business in China, the place of its incorporation. (See Cadle Co. v Hoffman, 237 AD2d 555, 555 [2d Dept 1997].) To establish adequately that Caixin is doing business in this state, defendant must prove that Caixin's activities in this state are so systematic and regular as to manifest continuity of activities in this state.