Kapitus Servicing, Inc. v MS Health, Inc.

Kapitus Servicing, Inc. v MS Health, Inc. 2023 NY Slip Op 05985 Decided on November 21, 2023 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 21, 2023
Before: Webber, J.P., Singh, Friedman, Mendez, Rosado, JJ.
Index No. 650548/20 Appeal No. 1078-1079 Case No. 2022-03590, 2022-04435

[*1]Kapitus Servicing, Inc. Formerly Known as Colonial Funding Network, Inc., Funding Network, Inc. as Servicing Provider for TVT Capital, LLC, Plaintiff-Respondent,

v

MS Health, Inc. Doing Business as MS Health etc., Defendant-Appellant, Shaun Passley Also Known as Shaun A Passley et al., Defendants.

Robert B. Harmon, New York (Charles Kleiner of counsel), for appellant.

Kapitus Servicing, Inc., New York (Susan Kim of counsel), for respondent.

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered July 29, 2022, which denied defendant MS Health's motion for summary judgment dismissing the complaint based on plaintiff's capacity to sue, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered September 8, 2022, which granted plaintiff's motion for summary judgment on its breach of contract claim, unanimously dismissed, without costs.

MS Health failed to establish prima facia entitlement to summary judgment as Kapitus Servicing, as a contracting party, generally has a right to maintain an action in its own name (CPLR 1004).Notwithstanding its status as a servicing agent for TVT Capital, Inc., Kapitus had independent authority and its own beneficial interest in the subject agreement (see Airlines Reporting Corp. v Pro Travel, 239 AD2d 233, 234 [1st Dept 1997]). MS Health does not contest that Kapitus was a corporation registered in New York with its own independent capacity to file lawsuits. Moreover, Kapitus had a pecuniary interest in the agreement. Thus, Kapitus is a "real party in interest," entitled to maintain this action in its own name (id.). Further, New York's Limited Liability Company Law § 802 (b) (i) states that a foreign limited liability company's failure to fully comply with the filing requirements does not impair the right of any other party to maintain an action.

In a separate order, Supreme Court granted summary judgment in favor of Kapitus on its breach of contract claim "in accordance with the reasoning on the record of [September 8, 2022]." However, MS Health failed to include these transcripts in its record, thereby "render[ing] meaningful appellate review of this matter impossible" (Board of Mgrs. of the Residential Section of the Plaza Condominium v Franzese, 193 AD3d 446, 446 [1st Dept 2021]; Nathanson v Tri-State Constr. LLC, 60 AD3d 547, 548 [1st Dept 2009]). Accordingly, that appeal is dismissed.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 21, 2023