Peculiar 3211 and other 3211



Digital Ctr., S.L. v Apple Indus., Inc., 2012 NY Slip Op 02806 (1st Dept., 2012)

This matter arose from a dispute between plaintiff, a Spanish company that manufactures photo booths, and defendant, a New York-based coin-operated machine business that had purchased some of plaintiff's booths. In lieu of an answer, defendant filed a motion to dismiss the complaint under CPLR 3211(a)(7), for failure to state a cause of action and CPLR 3211(a)(8), for lack of jurisdiction over plaintiff.

Defendant's CPLR 3211(a)(8) motion is based on what it argues is plaintiff's failure to register as a foreign corporation doing business in the State of New York as required by Business Corporation Law § 1312(a). Defendant asserts that plaintiff ships hundreds of photo booths into New York State, that its contacts within the State are sufficiently systematic and regular to warrant registration with the Secretary of State, and that plaintiff's failure to do so mandates dismissal of the action. However, it is well established that the solicitation of business and facilitation of the sale and delivery of merchandise incidental to business in interstate and/or international commerce is typically not the type of activity that constitutes doing business in the state within the contemplation of § 1312(a) (Uribe v Merchants Bank of N.Y., 266 AD2d 21 [1999]). The court correctly denied the motion, finding that at the very least, the record shows that a question of fact exists concerning whether or not plaintiff's contacts were systematic and regular enough to warrant compliance with the statute (see e.g. Alicanto, S.A. v Woolverton, 129 AD2d 601 [1987]).

Furthermore, it should be noted that defendant brought this part of its motion under the wrong subsection of CPLR 3211(a). Dismissal pursuant to Business Corporation Law § 1312(a) is not jurisdictional, but rather, affects the legal capacity to sue. Accordingly, a motion to dismiss for lack of compliance with Business Corporation Law § 1312(a) is properly brought [*2]pursuant to CPLR 3211(a)(3), not (a)(8)(see e.g. Hot Roll Mfg. Co. v Cerone Equip. Co., 38 AD2d 339 [1972]). It should also be noted that the motion court's characterization of this issue as being one of standing was improper. The question of capacity to sue is conceptually distinct from the question of standing (see e.g. People v Grasso, 54 AD3d 180, 190 n 4 [2008], citing Silver v Pataki, 96 NY2d 532, 537 [2001]).

Turning to the merits, the motion court correctly determined, as to the complaint's first and second causes of action, that plaintiff sufficiently stated claims for breach of contract and breach of the duty of good faith and fair dealing, arising from the purchase by defendant of 120 photo booths from plaintiff in or about April and May of 2009. Defendant received 60 of those booths, and allegedly cancelled shipment of the remaining 60 and refused to make payment.

The motion court erred in finding that plaintiff sufficiently alleged a cause of action for an account stated. Our review of the record shows an essential element of such claim to be utterly missing: an agreement with respect to the balance due (Raytone Plumbing Specialities, Inc. v Sano Constr. Corp., 92 AD3d 855 [2012]). Indeed, while the agreement on the balance due may be implied by the defendant's retention of the billings for an unreasonable period of time without objecting to them (id.), plaintiff here failed to plead precisely what that amount is and to support that amount with invoices sent to and retained by defendant.

Finally, plaintiff's seventh cause of action, for patent, trademark and trade dress infringement must be dismissed in part. Plaintiff has not stated the elements of a cause of action for patent infringement (see e.g. McZeal v Sprint Nextel Corp., 501 F3d 1354, 1357 [Fed Cir 2007]). It also failed to state a cause of action for infringement of a registered trademark; however, it has sufficiently stated a cause of action on a trade dress theory (see e.g. Yurman Design, Inc. v PAJ, Inc. 262 F3d 101, 115-116 [2d Cir 2001]).

Solomons v Douglas Elliman LLC, 2012 NY Slip Op 02577 (1st Dept., 2012)

OBRC's dismissal motion was properly denied because, at this stage, neither Travin's affidavit nor the certificate of occupancy is sufficient to rebut plaintiff's claim that the subject building contains at least six units. A motion to dismiss under CPLR 3211, when based on documentary evidence, is granted only if that evidence "utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. Of N.Y., 98 NY2d 314, 326 [2002]). The affidavit of Travin, "which do[es] no more than assert the inaccuracy of plaintiff[ s] allegations, may not be considered, in the context of a motion to dismiss, for the purpose of determining whether there is evidentiary support for the complaint" (Tsimerman v Janoff, 40 AD3d 242, 242 [2007]). In addition, the 22-year-old certificate of occupancy does not conclusively prove how many apartments were in the building when plaintiff tried to rent in it.

Eighth Ave. Garage Corp. v Kaye Scholer LLP, 2012 NY Slip Op 02402 (1st Dept., 2012)

Supreme Court properly considered the evidence submitted on the motion, including the e-mails, which conclusively disposed of plaintiffs' claims (see Pitcock v Kasowitz, Benson, Torres & Friedman LLP, 74 AD3d 613 [2010]). Accordingly, it is of no moment that discovery has not been conducted. In addition, plaintiffs have not asserted that facts essential to justify [*2]opposition to the motion may have existed but could not be stated (see CPLR 3211[d]).

Muhlhahn v Goldman, 2012 NY Slip Op 01562 (1st Dept., 2012)

Defendant Goldman's affidavit and the attached recordings of his interviews with plaintiff should have been considered on the motion. An affidavit is an appropriate vehicle for authenticating and submitting relevant documentary evidence (see Suss v New York Media, Inc., 69 AD3d 411, 412 [2010]), and may provide "connecting link[s]" between the documentary evidence and the challenged statements (Standard Chartered Bank v D. Chabbott, Inc., 178 AD2d 112 [1991]). Here, Goldman's affidavit was sufficient to authenticate the recordings of his interviews with plaintiff, since he stated in his affidavit that he was a participant in the recorded conversations and that the recordings were complete and accurate and had not been altered (see People v Ely, 68 NY2d 520, 527 [1986]; Lipton v New York City Tr. Auth., 11 AD3d 201 [2004], lv denied 5 NY3d 707 [2005]). Contrary to the motion court's finding, Goldman never stated that the recordings were "excerpts" or "highlights" of plaintiff's statements. Instead, he stated that the attached recordings were only some of the many recorded interviews of plaintiff that he had conducted. Moreover, in his reply affidavit, Goldman clarified that his opening affidavit was only meant to authenticate the evidence and aid the court by highlighting relevant statements.

Based on the documentary evidence and Goldman's affidavit, challenged statements 4, 5, 7, 8, 10, and 12 are true or substantially true, and thus are not actionable (see e.g. Gondal v New York City Dept. of Educ., 19 AD3d 141, 142 [2005]; Chinese Consol. Benevolent Assn. v Tsang, 254 AD2d 222, 222-223 [1998]). In addition, statements 4 through 10 either contain non-actionable opinion or are not reasonably susceptible of a defamatory connotation (see Ava v NYP Holdings, Inc., 64 AD3d 407, 412-413 [2009], lv denied 14 NY3d 702 [2010]; Guerrero v Carva, 10 AD3d 105, 111 [2004]). In any event, a claim based on challenged statements 6, 7, and 8 is barred by the single instance rule (see Bowes v Magna Concepts, 166 AD2d 347 [1990]). [*2]

We also dismiss plaintiff's claim based on challenged statement 11, which states, in pertinent part, that plaintiff "has made herself an outlaw of sorts by not carrying malpractice insurance." Plaintiff admitted on The Brian Lehrer Show that she did not carry malpractice insurance, and the recording of that radio interview was adequately authenticated.

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