KAPITUS SERVICING INC TVT LLC v. Shaun Passley also known as Shaun a Passley et al., Defendants. (2023)

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered July 29, 2022, which denied defendant MS Health's motion for summary judgment dismissing the complaint based on plaintiff's capacity to sue, unanimously affirmed, with costs.  Appeal from order, same court and Justice, entered September 8, 2022, which granted plaintiff's motion for summary judgment on its breach of contract claim, unanimously dismissed, without costs.

MS Health failed to establish prima facia entitlement to summary judgment as Kapitus Servicing, as a contracting party, generally has a right to maintain an action in its own name (CPLR 1004).  Notwithstanding its status as a servicing agent for TVT Capital, Inc., Kapitus had independent authority and its own beneficial interest in the subject agreement (see Airlines Reporting Corp. v. Pro Travel, Inc., 239 A.D.2d 233, 234, 657 N.Y.S.2d 654 [1st Dept. 1997]).  MS Health does not contest that Kapitus was a corporation registered in New York with its own independent capacity to file lawsuits.  Moreover, Kapitus had a pecuniary interest in the agreement.  Thus, Kapitus is a “real party in interest,” entitled to maintain this action in its own name (id.).  Further, New York's Limited Liability Company Law § 802(b)(i) states that a foreign limited liability company's failure to fully comply with the filing requirements does not impair the right of any other party to maintain an action.

In a separate order, Supreme Court granted summary judgment in favor of Kapitus on its breach of contract claim “in accordance with the reasoning on the record of [September 8, 2022].”  However, MS Health failed to include these transcripts in its record, thereby “render[ing] meaningful appellate review of this matter impossible” (Board of Mgrs. of the Residential Section of the Plaza Condominium v. Franzese, 193 A.D.3d 446, 446, 141 N.Y.S.3d 701 [1st Dept. 2021];  Nathanson v. Tri–State Constr. LLC, 60 A.D.3d 547, 548, 876 N.Y.S.2d 17 [1st Dept. 2009]).  Accordingly, that appeal is dismissed.