Fowler v. ISLAND PROPERTIES, LLC

• Decision Date: 11 August 2003
• Citation: Fowler v. ISLAND PROPERTIES, LLC, 307 A.D.2d 953, 763 N.Y.S.2d 481 (N.Y. App. Div. 2003)
• Court: New York Supreme Court — Appellate Division
• Parties: FOWLER, RODRIGUEZ, KINGSMILL, FLINT, GRAY & CHALOS, LLP, Appellant,<BR>v.<BR>ISLAND PROPERTIES, LLC, Respondent.

307 A.D.2d 953

763 N.Y.S.2d 481

FOWLER, RODRIGUEZ, KINGSMILL, FLINT, GRAY & CHALOS, LLP, Appellant,

v.ISLAND PROPERTIES, LLC, Respondent.

Decided August 11, 2003.

Santucci, J.P., Schmidt, Cozier and Rivera, JJ., concur.

Ordered that the order is reversed, on the law, with costs, that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (3) is denied, and the complaint is reinstated.

The plaintiff, Fowler, Rodriguez, Kingsmill, Flint, Gray & Chalos, LLP, is the surviving entity of a merger between The Chalos Law Firm, LLC (hereinafter Chalos) and Fowler, Rodriguez, Kingsmill, Flint & Gray, LLP, which was effective September 1, 2001. Chalos, as the tenant, and the defendant, Island Properties, LLC, as the landlord, entered into two leases which were executed on May 29, 1999, and August 8, 2000, respectively. Chalos took occupancy of the premises under the May 1999 lease, and, after the merger, the plaintiff continued to make rental payments to the defendant landlord. The plaintiff commenced this action to enforce the August 2000 lease, or in the alternative, to recover damages for the defendant's alleged breach of such lease by failing to make certain improvements to prepare the space demised thereunder for occupancy.

The Supreme Court improperly granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (3). Based upon the allegations in the complaint, the plaintiff is a foreign limited liability partnership licensed to do business in the State of New York, and thus does not lack the capacity to appear and bring its grievance before the court (cf. Pergament Home Ctrs. v Net Realty Holding Trust, 171 AD2d 736 [1991]).

Although the defendant also moved to dismiss the complaint...