Hooton Chocolate Co. v. Star Chocolate Novelties, Inc.
| Citation | 63 Misc.2d 482,311 N.Y.S.2d 698 |
| Parties | HOOTON CHOCOLATE CO., Inc., Plaintiff, v. STAR CHOCOLATE NOVELTIES, INC., Candy & Confectionary, Inc., Candy Lane, Inc., and Chocolate & Candy Industries, Inc., Defendants. |
| Decision Date | 15 June 1970 |
| Court | New York Supreme Court |
David A. Hendler, Hudson, for plaintiff.
Semel, Patrusky & Buchsbaum, New York City, for defendants (Kenneth Klein, New York City, of counsel).
This is a motion pursuant to CPLR 3211(a)(3) to dismiss the complaint on the ground that the plaintiff has not legal capacity to sue.
The plaintiff is a foreign corporation that is not authorized to do business in this state. However, in the first paragraph of its complaint is the recitation that it is so authorized. This misstatement of fact is corrected in plaintiff's affidavit in opposition to the motion. Therein it is alleged that not only is plaintiff corporation not authorized to do business in New York but, in fact, conducts no business here. The plaintiff insists it is a New Jersey corporation and the contract which is the genesis of the action was made and accepted in Newark, making the defendant New York corporation subject to suit in this state. The movant strongly contests this fact and submits telephone directory listings of plaintiff corporation in all of the five boroughs of New York City as evidence of the actual business presence of plaintiff in this state.
Peculiarly, the resolution of the factual question of whether plaintiff has sufficient business contact with New York so as to require authorization to do business here will not answer the question raised by the motion. If a hearing were ordered and proof taken and the plaintiff were to prevail by preponderantly proving that it doesn't do business in this state, the motion would have to be denied. A foreign corporation certainly has the capacity to sue a New York corporation in the county of this state where the latter maintains its main offices. Yet, if the movant were to prevail and prove that the plaintiff was, indeed, a foreign corporation doing business in this state without authority the motion would likewise have to be denied.
Section 1312 of the Business Corporation Law does not say that a foreign corporation doing business in this state without authorization cannot Commence* an action here. In pertinent part section 1312(a) states that such a corporation 'shall not Maintain * any action * * * unless and until such...
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Grand Bahama Petroleum Co., Ltd. v. Asiatic Petroleum Corp., 152
...with § 1312(a) but the party may pay the fees and taxes and then go forward with his action. Hooton Chocolate Co. v. Star Chocolate Novelties Inc., 63 Misc.2d 482, 311 N.Y.S.2d 698 (Sup.Ct.1970); Oxford Paper Co. v. S. M. Liquidation Co., 45 Misc.2d 612, 257 N.Y.S.2d 395, 399 (Sup.Ct.1965).......
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Paper Mfrs. Co. v. Ris Paper Co., Inc.
...in the character of the foreign corporation. Hence there is no true legal incapacity to sue; Hooton Chocolate Co. v. Star Chocolate Novelties Inc., 63 Misc.2d 482, 311 N.Y.S.2d 698; Ascher Corp. v. Horvath, 35 Misc.2d 375, 231 N.Y.S.2d 676. The foreign corporation is not precluded from comm......
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SECURITY PACIFIC MORTG. & R. EST. v. Canadian Land
...law, however, it is clear that plaintiff may cure its incapacity in the course of this litigation. Hooton Chocolate Co. v. Star Chocolate Novelties, 63 Misc.2d 482, 311 N.Y.S.2d 698, 699 (Sup. Ct.Columbia Co. 1970) ("a foreign corporation may become authorized after it has already conducted......
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ARP FILMS, INC. v. Marvel Entertainment Group, 86 Civ. 6759 (EW).
...Dept.1972); Paper Mfrs. Co. v. Ris Paper Co., 381 N.Y.S.2d 959, 86 Misc.2d 95 (Civ.Ct.N.Y.Co.1976); Hooton Chocolate Co. v. Star Chocolate Novelties, Inc., 311 N.Y.S.2d 698, 63 Misc.2d 482 (Sup.Ct.Columbia ...
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Table of Cases
...Group, Inc. v. Caplan , 9 AD3d 448, 779 NYS2d 922 (2d Dept 2004), §9:70 Hooton Chocolate Co., Inc. v. Star Chocolate Novelties, Inc. , 63 Misc2d 482, 311 NYS2d 698 (Sup Ct Colum Co 1970), §§36:201, 36:202 Hoo v. Forest Pharmaceuticals, Inc. , 225 AD2d 504, 639 NYS2d 693 (1st Dept 1996), §2:......
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Table of Cases
...Group, Inc. v. Caplan , 9 AD3d 448, 779 NYS2d 922 (2d Dept 2004), §9:70 Hooton Chocolate Co., Inc. v. Star Chocolate Novelties, Inc. , 63 Misc2d 482, 311 NYS2d 698 (Sup Ct Colum Co 1970), §§36:201, 36:202 Hoo v. Forest Pharmaceuticals, Inc. , 225 AD2d 504, 639 NYS2d 693 (1st Dept 1996), §2:......
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Motions to Dismiss
...as an affirmative defense to preserve the issue for later resolution. [ Hooton Chocolate Co., Inc. v. Star Chocolate Novelties, Inc. , 63 Misc2d 482, 311 NYS2d 698 (Sup Ct Colum Co 1970).] §36:202 Corporation May Become Licensed Bus Corp L §1312 does not prevent an unlicensed foreign corpor......
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Motions to Dismiss
...as an affirmative defense to preserve the issue for later resolution. [ Hooton Chocolate Co., Inc. v. Star Chocolate Novelties, Inc. , 63 Misc2d 482, 311 NYS2d 698 (Sup Ct Colum Co 1970).] §36:202 Corporation May Become Licensed Bus Corp L §1312 does not prevent an unlicensed foreign corpor......