COHEN v. ORTHONET NEW YORK IPA INC

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Supreme Court, Appellate Division, First Department, New York.

Eve COHEN, doing business as Aster Search Group, Plaintiff-Respondent, v. ORTHONET NEW YORK IPA, INC., Defendant-Appellant.

Decided: June 23, 2005

BUCKLEY, P.J., TOM, ANDRIAS, SULLIVAN, SWEENY, JJ. Farber, Pappalardo & Carbonari, White Plains (Eugene I. Farber of counsel), for appellant. Stephen H. Finkelstein, New York, for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered December 23, 2004, which, to the extent appealed from, denied defendant's motion to dismiss the first and third causes of action, alleging breach of contract and account stated, unanimously affirmed, without costs.

Affording the pleading a liberal construction, accepting the facts alleged in the complaint as true, according the plaintiff the benefit of every possible favorable inference, and determining that the facts alleged fit within a cognizable legal theory, dismissal of the causes of action for breach of contract and account stated, pursuant to CPLR 3211(a), was properly denied in this action on a personal services contract (see Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ).   Defendant failed to submit documentary evidence to resolve all factual issues as a matter of law and conclusively dispose of the plaintiff's claim (id. at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511).

 Plaintiff filed a certificate of doing business (General Business Law § 130[9] ) only under the name “Aster Search,” but apparently used both that name and “Aster Place Group” in her business.   There is, however, no showing of either an intent to defraud, which would prevent her from recovering on a contract, or an intention to sign in a purely corporate capacity (see e.g. Chemical Bank v. Masters, 176 A.D.2d 591, 574 N.Y.S.2d 754 [1991] ).   The certificate is not jurisdictional, and may be amended prior to entry of any judgment (William T. Schmitt Assoc. v. Loveless, 126 Misc.2d 480, 483 N.Y.S.2d 146 [1984];  see also Graham Cook Assoc. v. Mintz, 155 Misc.2d 273, 587 N.Y.S.2d 821 [1992] ).