Hamlettte v El Mundo Dept. Store, Inc.

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Hamlettte v El Mundo Dept. Store, Inc. 2009 NY Slip Op 33334(U) December 21, 2009 Supreme Court, New York County Docket Number: 101635/09 Judge: Doris Ling-Cohan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 1/5/2010 [* 1] : 5i~~REME COURT Q}i1 TllE STATE OF NEW YORI(.-: NEW YORK CO\fN,TY ~RESENT: Hon. Doris Ling-Cohan, Justke Part 36 1 -- T):RONNE HAML]J:TTE,. Plaintiff, INDEX NO. 1Ql6~$l92 -against ¢ ~OTI?~ SEQ~ NO. 001 ,..,l..!l) EL MUNDO DEPARTMENT STORE, INC, d/b/a JlAMILTON PALACE a_nd ABDOULAYE TAMBADOlJ, j JAN 0 5 20111 Defendants.- I i CouN~gw YORI( . _ T.he f,~llowing papers, numbered ~ were considered ·on this motion to/for ~tfP. O/:pt/CJW', . ' - - -- · -- -- NUMBERED . PAPERS Notice of Motion/Order to Show Cause, - Affidavits - Exhibits _ _ Answering Affidavits - Exhibits _ _ _ _. ., . . . . ._ _..___ _ _~ R~plylng Affidavits-------"'""'-.....-.---~------ 1. 2 5 6 Cr.oss..Modon: 3. 4 [ X] Yes [ ] No , J!~o1i the foregoing papers, it is ordered that this moticm and cross motion are decided to the extent · s.~t·forth below. - Defendant El Mundo Department Store, Inc. d/b/a Hamilton Palace ("El Mundo'') move_s fd/an - - -- ,,orderr pursuant-to -CPLR 3211, dismissing all claims against it,· on the grounds that El Mundo has been - --dissolved by proclamation of the Secretary of State as of September 23, 1998, or, in the alternative, .,· .' '. ', ' I,,, ·.' ' I gl-antihg it an additional 30 days to interpose an !:11,lswer. Plaintiff cross-moves, pursuant to CPLR3215, for a default judgment in favor of plaintiff and ag~.inst defend~t Abdoulaye Tambadou-("Tambadou"), ,,,, ' ¢ ' I for }#s'. failure to timely appear or answer in this action. . ,),-, ,_ ,, ' ' .' This action was commenced by plaintjff~-~~pove:r damages for. an alleged assaulfand batt~B~:JJ ,',' 1 1,, ,, ,',.,' ,', I' " ' ¢< 1 -· false.~est and malicious proseoution,· sµbseq~en~io anJncident that occurred at the.premises of 'defendant El Mundo. Plaintiff ~llege$ that he was ~·ssaultedon January 4, 2008,by defendartt 'rambadou, ,'' 1'· I',_',·,·,',:' "\ '_!,·I·, ,' '' ¢ '','I ' ¢,,'< ' ' < I < II : ' ' I ,1'1 I ' ' " ~ s'e,c~ty,..gtiara allegedly employed by El Mundo, and then. arrested after a false claim was made by ''::1'; ·, ' ' . I' I ,'I\ [* 2] Tambadou that plaintiff had improperly taken merchandise from El Mundo.· As ~ested, a result, plaintiffw~in· but the charges were subsequently dismissed. Motion to Dismiss On a motion to dismiss, pursuant to CPLR 3211, the pleading is given .a liberal consttuctiol1 and . theJacts alleged therein are accepted as true, Leon v Martinez, 84 NY2d 83, 87 (1994). The motion to ·. dismiss will only be granted if, upon giving the non.moving party every favorable inference, the facts do not fit within any cognizable legal theory. Id at 87:.88. Defendant El Mundo argues that the coll1plai11t should be dismissed as against it because it no _ ' Jo1faer does business and was dissolved by proclamation of the Secretary of State on SepWmber 23, ' ', ' 1998. El Mundo attaches to its motion papers, as evidence of such fact, a printout of the Secrera,cy of !. State's website that shows that El Mundo was dissolved by proclamation. Jack L. Cohen Affirmatfon;'~ do , :·'. '.3 ExhB. Plaintiff opposes the motion; contending that El Mundo "still holds itself out as an ongoing entity ' ' conducting business at 3560 Broadway, New York, NY." Edward Sivin Affirmation~ 6. In support, ,,plaintiff attaches"a few of the.many internet postings and a.dvertisements by and on behalf of El . ' ', ~ · Mundo." Id ; ~ ) ., ,·1' New York's Business Corporation Law.§ 1006(a)-sUttes that a dissolved corporation"may ' Ir' ¢ , , ·. de~ ' ' continue to function for the purpose of winding ' Up the aff~irs Of the corporation in the same mann~r- ":(i"i if f,lS ' ' \ th~ dissolution had not taken place." In doing so, "[t]he C()rpQ.I'ation may sue or be sued in all c_ourts ,~~, pa.rt~c~pate in actions andprqceedings." BCL § lQ06(a)(4). 1'Adissolved corporation "may be held liable. ," I ,', ''/ . ori·a cause of action that accrues after dissolution~ if the corJ)or~tion continued its operations, operated its ' ',. I ' ' ' ' ' '' 'i ¢ ' p:re~ises~ and hyld itself out as a de facto corporation. notwithstanding its dissolution.'~ Bruce Supply ' 1 _, ' (;o;p ..v New Wave Mechanical, Inc., 4 ' ' AD3d444~ 4~5 (2d Dep't 2004); see also Ludlum Corp. f::ensio,n· :,,. ,, ',. ,: Plan Trust v Matty's Superservi9e,}n¢.; lS§ Ari2d: ¢$.39, .340 (2d Dep't 1989). ¢I ,' I ' "'I I I'' ,, ,,, Pag~2 . ' '· I of 4 , - ¢'' [* 3] At this stage, defendant El Mundo had failed to. adequately demoristtate that El Mundo is no longer functioning as a corporation. Although El Mundo did submit a printout of the Secretary of State's website in support of its motion,. it failed to submit an affidavit by someone with actual kn'owledge of the status of the dissolved corporation, such as a representative of El Mundo. Instead, defendaht only submits an affirmation by its attorney, Jack L. Cohen, Esq., who presumably does not have the requisite personal knowledge of the corporation and, thus, is not the proper person to attest to ,.. -., its status. Furthermore, the attorney affinnation never clearly states that the corporation is defunct and no longer in business, beyond relying solely on the printout. Simply because a corporation has been .dissolved by proclamation does not necessarily mean that ··it no longer conducts business. Pursuant to Tax Law § 203-a, a dissolution by proclamation o~curs when a corporation is delinquent in paying the requisite taxes 6r filing reports artd after such failure, the ·.·-.. Secretary of State deems it dissolved after proclamation. -However, the court will not presume' that a . . . . - -1 mere declaration of dissolution by proclamation automatically means that a corporation no longer holds itself out as a business, especially in light of El. Mundo' s failure to sufficiently state, by someo11e with personal knowledge, that the corporation no longer conducts any business. Further, the relevant facts as to whether El Mundo is still conducting business are within the . . control of defendants and thus discovery is necessary. CPLR. 32 l l (d) provides, with respect to ~·otions' . '· ', to dismiss, that "[s]hould it appear ... that facts essential to justify opposition may exist but c~ot'th en . 1 ' ' be stated, the court may deny the motion." This subsection ."protects the party to whom essential ... facts are not presently known, especially where.those facts .are within the exclusive control of the tnpving party." Peterson v Spartan Indus., Inc., 33 NY2d 463, 4(i5-66 (1974). Thus, the motion to disniiss is denied, without pr~jtldice to move, if defendant so chooses, after ., ' ¢ i ,' 'I .. ¢·. I ' dis~overy. Defendant El Mundo is granted an additional .' ¢ 1i .1h':" 1 30 days, from the date of entry of this order, to' · ¢I. serve :, ·t tl(en and file an answer.to the complail1t. ' Page 3 of 4 ,-~ ' [* 4] . .Cross Motion f9r ~ Def\lu1t Judgment . . Plaintiff cross-moves for a default judgment against defendant Tambadou, as he 1:).as failed to .timely answer or appear in this action. H~wever, a cross motion is an improper vehicle for seeking ' '.I l ¢ .· affU"matiye relief from a non-moving party. Mango v Long !$/and Jewish-Hillside Med Ctr., 123 AD2d 843, 844 (2d Dep't 1986); Weinstein-Korn-Miller, NY Civ Prac if 2215.01. Therefore, the cross moti~n ' . . . '' . . ·.·,,·<~·<, for a: default judgment against non-moving pmty Tambadouis procedurally improper and, thus, demeJi.\ · . wjthout prejudice, for plaintiff to move for such reliefin a s,eparate motion, within 30 days. Accordingly, it is ORDERED that defendant El Mundo's motion is granted solely to the extent that El ¥undo has ' ',' an additional 30 days, from the date of entry of this order, to serve and file its answer to the complaint··' . . . . ~d . ' ' . ' . ' ' ' ; .' . ,:l)Jl its motion to dismiss is denied without prejudice, for defendant to re-file such motion, if it choose~·; ' ' following discovery~ and it is further ORDERED that plaintiffs cross motion for a default judgment against Tambadou is denied without prejudice to.move for such relief in a separate motion, .within 30 days; and it is further . ORDERED that, as previously scheduled; the parties shall appear for a prelimin_.ry ' ' ' ' . . . . , conference on January 27, 2010 at 9:30 AMin Room 428, 60 Centre Street, New York, NY, at .~:~llicb time an expedited discovery schedule shall be setj anddt is further .. . . . . . I /. ~· '· . . .. ·. ORDER.ED .that within 30 days of entry of this order, plaintiff shall l~rve a:. Pl'~!\ the parties, with notice of entry. . : · .. · . . . . . · '" · ¢ · . ' · · ·:This constitutes the decision and order of th.e Court. . IJ ¢ted: . · ' · i~I ~-caI \ \ .1- . "' ¢," ¢···, ' ( . ' ¢ ., . ' ' ' "'' 1::. ,' , ' ' ¢ cl4, . . r . ,' ' ¢ "" . ¢ ¢ ¢ ¢ '' ~;Wi~nt~S~\J-{runlet:tc.EI Mundo, dlsmis~ ·denied, only utt:Y 11.ffirir) of dis'solution:wpd · Page 4 of 4 ' ~& . ~Os ~i\?y ~ · . <Ofg [ X JNON·FlNAL DISPOSITION ·.. ,, C~t.'ck.on~: · [ ] FINAL DISPOSITION · ¢. C.~eck ff Appropriate: [ ] DO NOT POST '" . ' j order · ¢ · .. .· ·_DoRliiiN&COHAN, ~~ ·. . . · -~ J.s.c: · "'' '.; . · ··. · 'I . :··' ;~' ~... '.·:

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