Fine Arts Enterprises, N.V. v. Levy

• Decision Date: 06 April 1989
• Parties: FINE ARTS ENTERPRISES, N.V., Respondent, v. Morris LEVY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 827

539 N.Y.S.2d 827

149 A.D.2d 795

FINE ARTS ENTERPRISES, N.V., Respondent, v. Morris LEVY, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 6, 1989.

Connor, Curran & Schram (Daniel J. Tuczinski, of counsel), Hudson, for appellant.

Mangone & Schnapp (Louis A. Mangone, of counsel), New York City for respondent.

Before KANE, J.P., and CASEY, MIKOLL, YESAWICH and MERCURE, JJ.

KANE, Justice Presiding.

Appeal (1) from an order of the Supreme Court (Cobb, J.), entered March 30, 1988 in Columbia County, which, inter alia, granted plaintiff's motion for summary judgment, and (2) from the judgment entered thereon.

Plaintiff commenced this action seeking to recover the last of three installment payments due from defendant on a contract entered into between the parties on November 16, 1983. For a total price of $173,600, defendant received a syndicated partnership interest in a thoroughbred horse. The payments were to be in equal amounts of $57,860 and, although defendant made the first two payments, he never made the final payment. The action was commenced on July 15, 1987 and, after answering, defendant also made a demand for a bill of particulars to which plaintiff responded. Defendant also served a notice to depose the agent of plaintiff, Patrick Robinson, who signed the contract on its behalf. The deposition was scheduled for September 4, 1987. By letter dated July 31, 1987, plaintiff informed defendant that the deposition might have to take place sooner, apparently because Robinson would be in England after August. Plaintiff also cross-moved to depose defendant. Both depositions were then scheduled to take place on August 21, 1987. According to plaintiff, defendant then canceled this date; defendant also canceled his own deposition two more times and the interrogatories were never served. According to plaintiff, after three inquiries as to their status, he was told they were to be served soon. Instead, on October 13 1987, plaintiff received a second demand for a bill of particulars. On October 15, 1987, plaintiff moved for summary judgment. Defendant, in response, moved for summary judgment dismissing the complaint or, in the alternative, for a continuance to conduct further discovery. Supreme Court granted plaintiff's motion and defendant has appealed.

In support of his motion for summary judgment, defendant initially argued that plaintiff, a foreign corporation, was precluded from maintaining this action under Business Corporation Law § 1312(a). Under that statute, a foreign corporation "doing business" in this State without authorization cannot maintain an action in New York. Supreme Court found that defendant failed to show that plaintiff was doing business in New York. Defendant argues that the court erred because the facts relevant to plaintiff's activities in New York are solely within plaintiff's knowledge (see, CPLR 3212[f] ). However, by relying on this statute, it was defendant's burden to show that plaintiff's activities here were "systematic and regular" (Construction Specialties v. Hartford Ins. Co., 97 A.D.2d 808, 468 N.Y.S.2d 675; accord, Peter Matthews, Ltd. v. Robert Mabey, Inc., 117 A.D.2d 943, 944, 499 N.Y.S.2d 954), and there is a presumption that a foreign corporation does business in the state of its incorporation and not in New York (Alicanto, S.A. v. Woolverton, 129 A.D.2d 601, 602, 514 N.Y.S.2d 96). Here, the only evidence defendant presented was that the contract was executed and performed in New York and that plaintiff has a New York address. It also has a New York bank account. This evidence was insufficient to support defendant's allegation that plaintiff was doing business in this State (see, id., at 602-603, 514 N.Y.S.2d 96).

Nor do we agree that defendant should have been permitted to conduct further discovery on this issue. A motion for summary judgment cannot be defeated on the ground that more discovery is needed if the opposing party has failed to ascertain the facts due to its own inaction (see, Meath v. Mishrick, 68 N.Y.2d 992, 994-995, 510 N.Y.S.2d 560, 503 N.E.2d 115; Twining, Nemia & Hill v. Read Mem. Hosp., 89 A.D.2d 432, 434, 457 N.Y.S.2d 900). Although the action had been pending only three months at the time the parties made their motions (see, Colonresto v. Good Samaritan Hosp., 128 A.D.2d 825, 828, 513 N.Y.S.2d 748), it was defendant who canceled the taking of the depositions. Defendant never served the interrogatories. No requests were made to depose any officers of plaintiff, nor...