Opinion
January 15, 1973
In an action inter alia by plaintiff Midas, Inc., an Illinois corporation, for goods sold and delivered and upon a guarantee, (1) defendants appeal from two orders of the Supreme Court, Nassau County, the first, dated November 30, 1971, denying their motion for summary judgment against said plaintiff dismissing the latter's two causes of action (the third and fifth causes), and the second entered February 9, 1972, denying their motion "to renew" said motion for summary judgment; and (2) said plaintiff cross-appeals from so much of the first order as failed to grant its request to dismiss defendants' first affirmative defense, which pleads that said plaintiff has not paid the State of New York all fees, penalties and franchise taxes for the time said plaintiff was doing business in New York. Orders dated November 30, 1971 and February 9, 1972, affirmed, without costs. In view of the fact that this case must go to trial on defendants' counterclaim, the question as to whether plaintiff Midas, Inc. was doing business in New York is left to be determined as an issue at the trial. Rabin, P.J., Munder, Martuscello, Latham and Shapiro, JJ., concur.