| Schwarz Supply Source v Redi Bag USA, LLC |
| 2009 NY Slip Op 05956 [64 AD3d 696] |
| July 21, 2009 |
| Appellate Division, Second Department |
| Schwarz Supply Source, Appellant, v Redi Bag USA,LLC, Respondent. |
—[*1] Edward Weissman, New York, N.Y. (Jan Marcantonio of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals fromso much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered January 2, 2009,as granted those branches of the defendant's motion which were to dismiss the complaintpursuant to CPLR 3211 (a) (1) and Business Corporation Law § 1312 (a).
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a)(1) and substituting therefor a provision denying that branch of the motion; as so modified, theorder is affirmed insofar as appealed from, without costs to the defendant.
A motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint based on documentaryevidence "may be appropriately granted only where the documentary evidence utterly refutesplaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshenv Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84NY2d 83, 88 [1994]; Long v AllenAME Transp. Corp., 43 AD3d 1114 [2007]; Sheridan v Town of Orangetown, 21 AD3d 365 [2005];Scadura v Robillard, 256 AD2d 567 [1998]). Here, the causes of action, inter alia, torecover damages for breach of contract were not definitively refuted by any documentaryevidence presented by the defendant. Therefore, that branch of the defendant's motion which wasto dismiss the complaint pursuant to CPLR 3211 (a) (1) should have been denied.
However, the Supreme Court correctly granted that branch of the defendant's motion whichwas to dismiss the complaint pursuant to Business Corporation Law § 1312 (a). Thedefendant demonstrated that the plaintiff's activities in New York were not simply "casual oroccasional," but rather were "systematic and regular" and essential to its corporate business and,therefore, the plaintiff was "doing business" in New York without having obtained the requisiteauthorization to do so. Accordingly, the plaintiff was barred from maintaining an action in NewYork (see Highfill, Inc. v Bruce & Iris,Inc., 50 AD3d 742 [2008]; cf. Airline Exch. v Bag, 266 AD2d 414 [1999]; S& T Bank v Spectrum Cabinet Sales, 247 AD2d 373 [1998]). Rivera, J.P., Miller, Balkin andAustin, JJ., concur. [See 2008 NY Slip Op 33490(U).]