Flint Cr. Campground v Cator

[*1] Flint Cr. Campground v Cator 2010 NY Slip Op 51851(U) [29 Misc 3d 1216(A)] Decided on October 27, 2010 County Court, Yates County Falvey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2010
County Court, Yates County

Flint Creek Campground, Plaintiff-appellee,

against

George Cator and Connie Cator, Defendant-appellants.



2010-303



Cheney & Blair, LLP,

Donald J. Cheney, of counsel,

Attorneys for defendant-appellants,

Gary Burgert and Beth Burgert,

pro se owners of plaintiff-appellee.

W. Patrick Falvey, J.

Defendant-appellants appeal from a judgment of the Town of Potter Justice Court, granting the plaintiff's claim for a judgment amount of $1338.00.

Following a bench trial, the Court ruled in favor of the plaintiffs.

Prior to the trial, the defendants had made a motion to dismiss, argued on November 9, 2009, which motion was denied. Defendant argues that the Court erred in denying the motion. On review of the transcript of the argument of the motion, and the trial, and on the papers submitted in the appeal, the Court finds that the Town Court erred in not dismissing the action, on the ground that the Town of Potter Court did not have personal jurisdiction over the defendants as defined in Unified Justice Court Act (UJCA) §403 and on the ground that to be a party to an action, the plaintiff must be, but is not, a governmental unit, a natural person, a corporation, a partnership, or an unincorporated association. Further, the plaintiff was not entitled to a judgment against George Cator since he was not a party to the contract sued upon. The judgment is reversed and the action is dismissed, without prejudice.

UJCA §403, was amended in 1991 to give a Justice Court personal jurisdiction over a defendant served in an adjoining county, so long as the action sued upon was one for failure of defendant to make payment to the plaintiff on goods and/or services received by the defendant in the town where the Justice Court sits. For example, an action where the plaintiff extended credit to defendant who purchased goods from the plaintiff, or an action where the plaintiff did work [*2]for the defendant, who did not then pay the plaintiff for the work performed, would give the court personal jurisdiction over the defendant served in an adjoining county.

Here, as defendant points out, plaintiff's action is a breach of contract action, which does not qualify under the UJCA §403 personal jurisdiction provision.

Further, the Court finds that the plaintiff is not a proper entity to be entitled to commence an action in New York State. A party to an action must exist both in fact and in law, "since a party to an action other than a governmental unit must be a natural person or a corporation ( cites omitted), except as provided specifically by law for partnerships (CPLR 1025; Partnership Law §115-a) and for unincorporated associations (CPLR 1025; General Associations Law §§ 12,13). It is existence in law which creates for entities the legal capacity to sue." Little Shoppe Around the Corner v Carl, 80 Misc 2d 717, 718 (County Court, Rockland County), 1975. "Existence in law must be alleged." Little Shoppe, at 718.

Here, Flint Creek Campground is not a natural person, a corporation, or a partnership. Apparently, it is an assumed name under General Business Law §130. In such a case, the natural persons that own the business must sue in their own names.

The trial court also erred in granting a judgment against George Cator, since he is not a party to the contract.

The appeal is granted, the judgment is reversed, and the action is dismissed, without prejudice.

THIS CONSTITUTES THE DECISION, JUDGMENT AND ORDER OF THE COURT

SO ORDERED.

DATED: October 27, 2010

_______________________________

W. Patrick Falvey

Yates County Court Judge