Summary
holding that the statute did not apply to a foreign corporation that had no office, telephone listing, or employees in New York because its solicitation of business and facilitation of the sale and delivery of its merchandise was incidental to its business in interstate and international commerce
Summary of this case from Audemars Piguet Holding S.A., Audemars Piguet (North America) Inc. v. Swiss Watch Int'l, Inc.Opinion
November 4, 1999
Stephan H. Peskin, for respondent.
Edward S. Feldman, for appellant.
ROSENBERGER, J.P., WILLIAMS, TOM, MAZZARELLI, SAXE, JJ.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered June 10, 1999, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff corporation had not complied with the requirements of Business Corporation Law § 1312 was properly denied since defendant did not satisfy its burden on the motion of demonstrating that plaintiff was "doing business" in New York State (see, Constr. Specialties, Inc. v. Hartford Ins. Co., 97 A.D.2d 808), and therefore subject to the conditions placed byBusiness Corporation Law § 1312 on corporate capacity to sue. On the present record, it appears that plaintiff maintains no office or telephone listing, owns no real property and has no employees in this State. Its activities here are limited to solicitation of business and facilitating the sale and delivery of its merchandise incidental to its business in interstate and international commerce. Such activities do not constitute "doing business in this state" within the contemplation of section 1312 of the Business Corporation Law (see, Alicanto, S. A., v. Woolverton 129 A.D.2d 601; Colonial Mtge. Co. v. First Fed. Sav. Loan Assn. of Rochester, 57 A.D.2d 1047).
In any event, the failure of plaintiff to obtain a certificate pursuant to BCL 1312 may be cured prior to the resolution of the action and its absence is an insufficient basis upon which to grant summary judgment.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.