ROGERS REALTY LLC v. MCCALLU 200 B1 NY 11225 (2025)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent's motion to amend the answer and for dismissal pursuant to CPLR 3211(a)(1) and or (7) for failure by petitioner to comply with New York publishing law section 206 and ensuing opposition and reply.

Papers Numbered

Notice of Motion 1

Opposition 2

Reply 3

Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:

Petitioner commenced this nonpayment proceeding on October 18, 2024 seeking rental arrears of $2,001.06 per month at a preferential rent for August 2024 through October 2024. Respondent appeared and filed an answer pro se asserting the following affirmative defenses: (1) the monthly rent is not the legal or current rent on her lease, (2) warranty of habitability, (3) general denial and other- HRA. Respondent appeared with counsel and now seeks to amend her answer pursuant to CPLR 3025 (b) and to dismiss the proceedings per CPLR 3211(a)(1)(7) in that petitioner has failed to comply with the NY Publishing Law section 206.

In support of respondent's motion, respondent submits an affidavit from respondent and a printout from the NYS DOS website indicating that at the time this case was commenced the LLC had failed to publish its incorporation details as required by law. Respondent argues that this bars the petitioner from proceeding on this proceeding and seeks dismissal. Respondent submits several decisions from the civil court which support respondent's position.

In opposition petitioner submits documentation from the NYS DOS indicating that articles of incorporation documents were filed in 1998 and publication documents have been submitted as well. Petitioner argues that it may cure a failure to publish, and its late filing has cured any defect.

In reply respondent argues that a certification of publishing was only filed on September 4, 2025, eleven months after this case was commenced and as at time of commencement the petitioner was not in compliance, dismissal is mandated.

Courts have held that under a motion to dismiss pursuant to CPLR 3211(a)(1) dismissal is only warranted where the documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law (Goshen v Mut. Life Ins. Co. of NY, 98 NY2d 314 [2007]. The evidence must be unambiguous and of undisputed authenticity (Fortis Fin Servs. v Fimat Futures USA, 290 AD2d 383 [A.D. 1st Dept 2002]. In seeking dismissal, the proffered documents must “utterly refute” the allegations in the plaintiff's complaint, “conclusively establishing a defense as a matter of law” (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 34 NY3d 908, 115 N.Y.S.3d 782, 139 N.E.3d 406 [2021]; Shephard v Friedlander, 195 AD3d 1191, 151 N.Y.S.3d 184 [3rd Dep't. 2021]; Hart 230, Inc. v Penny Mac Corp., 194 AD3d 789, 149 N.Y.S.3d 134 [2nd Dep't. 2021]).

On a motion to dismiss pursuant to CPLR 3211(a)(7) the court must determined whether accepting as true the factual allegations in the petition and according the plaintiffs the benefits of any favorable inferences, the plaintiff can succeed upon any reasonable views of the facts and whether the pleadings have a cause of action (See Rochdale Village Inc., v Zimmerman, 2 AD3d 827 [AD 2nd Dept 2003]). Additionally, the allegations in the pleadings cannot be vague or conclusory (see Stolanoff v Gahona, 248 AD2d 525 [AD 2nd Dept 1998]). The courts role in determining a motion to dismiss, is limited to determining whether the complaint state a cause of action (Frank v Daimler Chrysler Corp., 292 AD2d 118 [1st Dept 2002]). The standard is not whether a party has artfully drafted the pleadings, but whether deeming the pleading to allege whatever can be reasonably implied for its statements, a cause of action may be sustained (Stending Inc. v Thom Rock Realty co., 163 AD2d 46 [1st Dept 1990]). The pleading must be liberally construed and the court must accept the allegations as true (see MBK associated of New York LLC v Waddell, 2005 WL 5959961 [NY Co Supreme 2005]). If the allegations manifest any cognizable cause of action, the motion must be denied (See Fishberger v Vos, 51 AD3d 627 [2nd Dept 2008]).

Herein, petitioner's failure to comply with the publishing requirements of section 206, at the time the proceeding was commenced does not preclude petitioner from commencing this proceeding. A failure to comply with the requirements of 206 does not constitute a jurisdictional defect warranting dismissal (See Willoughby Rehabilitation and Health Care Center LLC v Webster, 13 Misc 3d 1320(a) [Nassau Co Supreme Ct 2006]; Acquisition America VI LLC., v Lamadores, 5 Misc 3d 461 [Civ Ct NY Co 2004]). The court notes in Willoughby, supra, that petitioner had availed itself of the opportunity to cure which is afforded by the statute. The court went on the note, in the absence of a contrary legislative intent, the “court views the albeit belated publication ․ to satisfy the Limited Liability Company Law section 206 which in relevant part includes: Failure to cause such notice to be published and to file such proof within one hundred and twenty days of the effective date of the article shall prohibit limited liability company from maintaining any action or special proceeding in this state unless and until such limited liability company causes such notice to be published and filed such proof of publication.” The court concluded the language of “unless and until” to be similar to Business Corporation Law section 1312(a) which prohibits foreign corporations from doing business in New York unless authorized to do so, is not a jurisdictional defect upon subsequent compliance, as the statute warrants nunc pro tunc application averting dismissal of the action (See Manhattan Fuel Co. Inc v New England Petroleum Corp., 442 F. Supp 797 801 [SDNY 1976], aff'd 578 F.2d 1368 [2nd Cir 1978], 1700 First Avenue LLC., v Parsons-Novak, 46 Misc 3d 30 [AT 1st Dept 2014]), Barklee Realty Co v Pataki, 309 AD.2d 310 [1st Dept 2003]). Courts have held that “subsequent compliance with [publication requirement] warrants nun pro func application,” and thus a plaintiff after complying with 206 LLC, “is treated as though they had standing at the time the suit was filed.” See Dual Groupe LLC v Gans-Mex, 932 F. Supp2d 569 [USDC, SDNY 2013] quoting 2004 McDonald Ave. Realty LLC v 2004 McDonald Ave. Corp, 25 Misc 3d 1204(a)[ Sup Ct Kings Co 2007]).

Likewise when a corporation loses its authority to do business in New York for failure to pay its franchise tax pursuant to Tax Law 203-a, the payment of taxes and penalties restores it to dejure status nunc pro tunc (See. Propp v Chaya Amusement Corp, 155 AD2d 251 [1st Dept 1989]). Similarly NY LLC Law section 802 provides in part that “before doing business in this state, a foreign limited liability company shall apply for authority to do business in this state.” NY LLC law 802 also imposes a publication requirement which permits “if within one hundred twenty days after the filing of its application for authority with the department of state, proof of such publication has not been filed with the department of state, the authority of such foreign limited liability company to carry on, conduct or transact any business in this state shall be suspended, effective as of the expiration of such one hundred twenty day period.” Courts have interpreted the above statute to mean that “a foreign corporation may cure a failure to obtain authorization to do business during the pendency of an action” (See Jermainia Holdings LLC v Lyndo, 2024 WL 2118306 [Civ Ct Kings Co 2024], citing Uribe v Merchants Bank, 266 Ad2d 21 [1st Dept 1999].

There is no doubt that petitioner herein filed its publication after commencement of this summary proceedings. However, as noted above this court interprets NY LLC 206 as permitting petitioner the opportunity to cure, and it has done so by publishing, which was filed on September 4, 2025. As such, petitioner at this present time has cured its lack of authority and is currently authorized to do business activity in New York and maintain this proceedings. (See Hart Property Services LLC. V Jackhan, 85 Misc 3d 1263(a) [Civil Ct. Kings Co 2025].

Respondent's motion to amend the answer is granted as petitioner has failed to prove any prejudice or surprise (CPLR 3025(b) and the answer is deemed amended and filed.

Respondents motion to dismiss pursuant to CPLR 3211(a)(1),(7) is denied.

The case is restored to the courts calendar on November 5, 2025 at 9:30 am, part F, rm 612, for trial or settlement.

This constitutes the decision and order of this court.

Hannah Cohen, J.