FORETHOUGHT LIFE INSURANCE COMPANY v. 1442 LLC (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the defendants 1442, LLC, Rochel Miriam Kassirer, and Isaac Kassirer appeal from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated September 6, 2023.  The order denied those defendants’ motion pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to foreclose a mortgage against, among others, the defendants 1442, LLC, Rochel Miriam Kassirer, and Isaac Kassirer (hereinafter collectively the defendants).  The defendants moved pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them on the ground that the plaintiff lacked the capacity to sue pursuant to Business Corporation Law § 1312(a), as it was a foreign corporation doing business in this State without authority.  In an order dated September 6, 2023, the Supreme Court denied the defendants’ motion.  The defendants appeal.

“Business Corporation Law § 1312(a) constitutes a bar to the maintenance of an action by a foreign corporation found to be doing business in New York without having obtained the required authorization to do business there” (Airline Exch., Inc. v. Bag, 266 A.D.2d 414, 415, 698 N.Y.S.2d 694;  see Business Corporation Law § 1312[a];  JPMorgan Chase Bank, N.A. v. Didato, 185 A.D.3d 801, 802, 128 N.Y.S.3d 520).  “The purpose of this statutory provision is to regulate foreign corporations which are doing business within the State, not ․ to enable the avoidance of contractual obligations” (Central Care Solutions, LLC v. Grand Great Neck, LLC, 219 A.D.3d 1482, 1485, 196 N.Y.S.3d 524 [internal quotation marks omitted];  see Von Arx, AG. v. Breitenstein, 41 N.Y.2d 958, 394 N.Y.S.2d 876, 363 N.E.2d 582).  “The party relying upon this statutory barrier bears the burden of proving that the corporation's business activities in New York were not just casual or occasional, but so systematic and regular as to manifest continuity of activity in the jurisdiction” (JPMorgan Chase Bank, N.A. v. Didato, 185 A.D.3d at 802–803, 128 N.Y.S.3d 520 [alteration and internal quotation marks omitted];  see Highfill, Inc. v. Bruce & Iris, Inc., 50 A.D.3d 742, 743, 855 N.Y.S.2d 635).  “[A]bsent proof establishing that the plaintiff is doing business in New York, it is presumed that the plaintiff is doing business in its State of incorporation and not in New York” (Airline Exch., Inc. v. Bag, 266 A.D.2d at 415, 698 N.Y.S.2d 694;  see JPMorgan Chase Bank, N.A. v. Didato, 185 A.D.3d at 803, 128 N.Y.S.3d 520).

The defendants failed to establish, prima facie, that the plaintiff “conducted continuous activities in New York essential to its corporate business” (JPMorgan Chase Bank, N.A. v. Didato, 185 A.D.3d at 803, 128 N.Y.S.3d 520 [alteration and internal quotation marks omitted];  see Business Corporation Law § 1312[a];  Engineering & Tech. Resources, Inc. v. Xcel Dev. Corp., 139 A.D.3d 661, 662, 32 N.Y.S.3d 219).  Therefore, the presumption that the plaintiff does business not in New York but in its State of incorporation has not been overcome (see JPMorgan Chase Bank, N.A. v. Didato, 185 A.D.3d at 803, 128 N.Y.S.3d 520;  Construction Specialties, Inc. v. Hartford Ins. Co., 97 A.D.2d 808, 808, 468 N.Y.S.2d 675).  Accordingly, the Supreme Court properly denied the defendants’ motion pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against them.

In light of the foregoing, we need not consider the plaintiff's remaining contentions.

LASALLE, P.J., BRATHWAITE NELSON, DOWLING and VENTURA, JJ., concur.