ROBERT v. Gabriel Zeitouni, Defendant–Respondent. (2018)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered June 25, 2018, which, to the extent appealed from, granted defendants' motion to dismiss plaintiff's claims against the individual member of the corporate defendant and her claim for unjust enrichment against the corporate defendant, and denied the motion as to plaintiff's claims for promissory estoppel and quantum meruit against the corporate defendant, unanimously modified, on the law, to dismiss the complaint in its entirety, and as so modified, affirmed, without costs.  The Clerk is directed to enter judgment accordingly.

General Business Law § 130(9)'s prohibition against a person in violation of General Business Law § 130(1) maintaining any action or proceeding in any court in this state on any contract, account, or transaction, bars plaintiff from asserting any claims, including equitable claims.  This is the only reading that gives effect to all of the provisions of the statute (see McKinney's Cons Laws of NY, Book 1, Statutes § 98).  It is consistent with our reading of an analogous statute, Business Corporation Law § 1312 (see Showcase Limousine v. Carey, 269 A.D.2d 133, 133–134, 703 N.Y.S.2d 22 [1st Dept. 2000], mod 273 A.D.2d 20, 716 N.Y.S.2d 551 [1st Dept. 2000], lv dismissed 95 N.Y.2d 902, 716 N.Y.S.2d 642, 739 N.E.2d 1147 [2000];  see also DMBJ Prods. v. TMZ TV, 2009 WL 2474190, at *4 [S.D. N.Y. Aug 11, 2009] ).

Ordinarily, absent an intent to deceive, a plaintiff may be granted leave, until entry of judgment, to cure the statutory violation (see Cohen v. OrthoNet N.Y. IPA, Inc., 19 A.D.3d 261, 800 N.Y.S.2d 380 [1st Dept. 2005] ).  Here, however, because the contract is in the name of an LLC, plaintiff cannot comply;  she cannot file an assumed name that includes a corporate identifier (see 19 NYCRR 156.4[c] ).

We have considered plaintiff's remaining arguments and find them unavailing.