Aldeavision Solutions Inc. v Schorr Sports Broadcasting, LLC

[*1] Aldeavision Solutions Inc. v Schorr Sports Broadcasting, LLC 2009 NY Slip Op 51946(U) [24 Misc 3d 1250(A)] Decided on September 14, 2009 Civil Court Of The City Of New York, Kings County Edwards, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 14, 2009
Civil Court of the City of New York, Kings County

Aldeavision Solutions Inc., Plaintiff,

against

Schorr Sports Broadcasting, LLC d/b/a Schorr Brothers Broadcasting, Defendant.



046025/08



Plaintiff was represented by Gerald Slotnik, Esq. of Meyers, Saxon & Cole.

Defendant was represented by Joseph P. Dineen, Esq.

Genine D. Edwards, J.

In this action, the Court must decide whether the plaintiff corporation was "doing business" in the State of New York, pursuant to Business Corporation Law §1312.

Business Corporation Law §1312 (a) states as follows: A foreign corporation doing business in this state without authority shall not maintain any action or special proceeding in this state unless and until such corporation has been authorized to do business in this state and it has paid to the state all fees and taxes imposed under the tax law or any related statute . . . .

Business Corporation Law §1312 (a). There is a presumption that a foreign corporation is "doing business" in its state of incorporation. See Airline Exch., Inc. v. Bag, 266 AD2d 414, 698 NYS2d 694 (2d Dept. 1999). However, whether a foreign corporation is "doing business"in New York must be analyzed on a case-by-case basis with "inquiry made into the type of business being conducted." Highfill, Inc. v. Bruce & Iris, Inc.,50 AD3d 742, 855 NYS2d 635 (2d Dept. 2008) (citing Alicanto, S. A. v. Woolverton, 129 AD2d 601, 514 NYS2d 96 (2d Dept. 1987).

The facts adduced at trial establish that plaintiff is a Canadian corporation with offices and employees headquartered in Quebec. Its business purpose is to provide video transmission from one place to another. In the instant matter, the parties contracted for the transmission of baseball games from Cuba to New York for viewing via the internet. The plaintiff does not have an office, employees, telephone number, bank account or real property in the State of New York. Plaintiff corporation rents a fiber optic cable from a company headquartered in Albany, New York. In addition, plaintiff corporation owns and stores equipment that is attached to that cable. Plaintiff also has two customers in the State of New York.

Based upon the credible evidence, this Court determines that the plaintiff's business [*2]activities did not amount to systematic and regular business practices to manifest continuity of activity in New York to invoke Business Corporation Law §1312. See Alicanto, S. A. v. Woolverton, 129 AD2d 601, 514 NYS2d 96 (2d Dept. 1987). Plaintiff's business was merely part and parcel to interstate commerce. Hence, defendant failed to overcome the presumption of incorporation in plaintiff's state.

Though not raised by either party, this Court finds that the arbitration clause within the subject contract was waived by both parties, thereby rendering this Court's jurisdiction proper. See Sherrill v. Grayco Builders, Inc., 64 NY2d 261, 486 NYS2d 159 (1985); DeSapio v. Kohlmeyer, 35 NY2d 402, 362 NYS2d 843 (1974); Dembitzer v. Chera, 305 AD2d 531, 761 NYS2d 60 (2d Dept. 2003); Hawthorne Dev. Associates v. Gribin, 128 AD2d 874, 513 NYS2d 796 (2d Dept. 1987).

Accordingly, judgment is in favor of the plaintiff in the amount of $22,161.00 as well as costs and interest from January 31, 2007.

This constitutes the decision and order of the Court.

Dated: September 14, 2009__________________________

Genine D. Edwards

Judge of Civil Court