Multiquest, P.L.L.C. v Allstate Ins. Co.

[*1] Multiquest, P.L.L.C. v Allstate Ins. Co. 2008 NY Slip Op 50741(U) [19 Misc 3d 136(A)] Decided on April 3, 2008 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 3, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2006-1357 Q C.

Multiquest, P.L.L.C. a/a/o JEAN JOSEPH JEUNE, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered December 6, 2005. The order denied defendant's motion for summary judgment (10 Misc 3d 877 [2005]).

Order modified by providing that the motion is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Under the circumstances presented and for the reasons set forth in Multiquest, P.L.L.C. v Allstate Ins Co. (16 Misc 3d 137[A], 2007 NY Slip Op 51735[U] [App Term, 2d & 11th Jud Dists 2007]), the matter should have been denied without prejudice to
renewal upon proper papers (see Wider v Heller, 24 AD3d 433 [2005]). In view of the foregoing, we do not reach the parties' contentions with regard to the merits of the motion (see id.).

Pesce and Rios, JJ., concur.

Golia, J.P., dissents in a separate memorandum. [*2]

Golia, J.P., dissents and votes to reverse the order and grant defendant's motion for summary judgment dismissing the complaint in the following memorandum:

The simplicity of the majority decision belies the reasoning which lies behind its singular determination. Indeed, my colleagues sua sponte raise the issue concerning the absence of the complaint and the answer, when a simple dismissal is not only the clear and obvious resolution but is also mandated by the facts and law. The pleadings are contained in the court's own file.

It is incontestable that at the time the services that are the subject of this claim were rendered, plaintiff Multiquest, P.L.L.C. was not eligible for reimbursement because it was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). This fact has been previously determined after the alleged incorporator, Dr. Kathryn Clark, testified that she was never an owner or manager of plaintiff (see Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]).

I find it inappropriate under these facts to now search for reasons to burden the parties and the courts with additional motions.
Decision Date: April 03, 2008