Creative Cabinet Corp. of America, Inc. v. Future Visions Computer Store

• Decision Date: 16 May 1988
• Citation: 528 N.Y.S.2d 596,140 A.D.2d 483
• Parties: CREATIVE CABINET CORP. OF AMERICA, INC., Respondent, v. FUTURE VISIONS COMPUTER STORE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 596

528 N.Y.S.2d 596

140 A.D.2d 483

CREATIVE CABINET CORP. OF AMERICA, INC., Respondent, v. FUTURE VISIONS COMPUTER STORE, Appellant.

Supreme Court, Appellate Division Second Department.

May 16, 1988.

Slater, Vanderpool & Breakstone, Garden City (Jay L.T. Breakstone, of counsel), for appellant.

Before BRACKEN, J.P., and KUNZEMAN, SPATT and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of contract and for rescission of a contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), entered December 16, 1986, which, inter alia, (1) denied its motion for summary judgment dismissing the action, and (2) granted the plaintiff leave to serve supplemental summonses and complaints on nonparties Miro Computer, Inc. and D.M.V. Computers, Inc.

ORDERED, that the order is modified, on the law, by deleting the third and fourth decretal paragraphs thereof; as so modified, the order is affirmed, without costs of disbursements.

The plaintiff commenced the present action by the service of a summons and complaint in which "Future Visions Computer Store" was named as the sole defendant. The manner of service is not indicated in the record on appeal.

An answer was interposed by a party which did not identify itself, other than by the phrase "Defendant, sued herein as Future Visions Computer Store". Among the defenses asserted in this answer were a "[d]enial of corporate existence and lack of capacity to contract, sue or be sued", as well as a defense based on lack of personal jurisdiction. This answer also contained a denial of the plaintiff's allegation that "Future Visions Computer Store" was a copartnership.

The named defendant then made a motion for various relief, including an order "dismissing the action herein against the defendant on the ground that defendant is not a proper party to this proceeding". In support of this motion, it was alleged that "there never has been a legal entity known as and by [the name] 'Future Visions Computer Store' ". The store at which the plaintiff purchased its computer was alleged to have been owned and operated by a domestic corporation, D.M.V. Computers, Inc.

The plaintiff opposed this motion. It was alleged by the plaintiff's attorney that "Future Visions Computer Store" is a name under which two separate corporations, D.M.V. Computers, Inc. and Miro Computer, Inc., do business. Further, it was alleged that Michael A. Disabella was the sole shareholder and principal officer of both corporations.

The Supreme Court, Suffolk County, denied the motion of Future Visions Computer Store to dismiss the complaint. The court also granted leave to serve the two corporations which are controlled by Mr. Disabella. This appeal by Future Visions Computer Store followed. The plaintiff has not cross-appealed.

The affidavits and exhibits submitted in connection with the defendant's motion establish conclusively that Future Visions Computer Store is a trade name for D.M.V. Computers, Inc., which operated the store at which the plaintiff purchased his allegedly defective computer. Since the allegations of...