......... SCAN SHORT FORM ORDER SUPREME COURT STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. IRA B. WARSHAWSKY, Justice. TRIALIIAS PART 8 URIS INTERNATIONAL LTD. and INTERNATIONAL CONSULTANTS AND ASSOCIATES, LLC -against - Plaintiffs INDEX NO. : 00092912010 MOTION DATE: 04/1412010 MOTION SEQUENCE: 001 ARIZONA INTERNATIONAL, LLC Defendant. The following papers read on this motion: Notice of Motion, Affrmation, Affdavits & Exhibits Annexed... Memorandum of Law in Support of Motion to Dismiss Complaint... Affirmation of V. David Rivkin in Opposition... Plaintiffs Memorandum of Law in Opposition to Motion to Dismiss... Affirmation of David B. Petshaft in Furher Support... Defendant' s Reply Memorandum of Law in Furher Support of Defendant' Motion to Dismiss Complaint... PRELIMINARY STATEMENT Defendant moves for an Order Dismissing all or portions of the Complaint on the following grounds: The Second Cause of Action for Unjust Enrichment is inappropriate in the face of the First Cause of Action seeking the same relief based upon a contract;
The complaint fails to state a cause of action with suffcient specificity as to apprise defendant of the basis of the claims; Plaintiffs Uris International ("Uris )and International Consultants and Associates, LLC lack standing to commence actions in New York Cours because both of them were "doing business in New York" without the requisite fiing with Secretar of State and payment of fees; and, because ICA was administratively dissolved in 2008, and no longer has standing to litigate. BACKGROUND Plaintiff Uris was formed under the laws of the British Virgin Islands, and plaintiffica was formed as a limited liability company in Florida. Defendant Arizona, LLC is a New York limited liability company, headquarered in Lake Success. Commencing as of Januar 1 2003 ICA and Alberto Uribe, represented by Uris entered into a series of four Consultation and Service Agreements, whereby Arizona, the "Client" would pay them a commission amounting to 1 % gross sales of Arizona beverages outside the United States. It is payments under the term ofthe 2007 contract which are in issue. Defendant contends that both entities did business in New York, but without authorization by Secretar of State, and are therefore bared from access to the Cours under Business Corporation Law 1312. The contention is that Uris failed to comply with 1301 which provides in par as follows: 1301. Authorization of foreign corporations (a) A foreign corporation shall not do business in this state until it has been authorized to do so as provided in this aricle. A foreign corporation may be authorized to do in this state any business which may be done lawflly in this state by a domestic corporation to the extent that it is authorized to do such business in the jurisdiction of its incorporation, but no other business. (b) Without excluding other activities which may not constitute doing business in this state, a foreign corporation shall not be considered to be doing business in this state, for the purposes of this chapter, by reason of caring on in this state anyone or more of the following activities:
(1) Maintaining or defending any action or proceeding, whether judicial, administrative, arbitrative or otherwse, or effecting settlement thereof or the settlement of claims or disputes. (2) Holding meetings of its directors or its shareholders. (3) Maintaining bank accounts. (4) Maintaining offces or agencies only for the transfer, exchange and registration of its securities, or appointing and maintaining trstees or depositaries (sic.) with relation to its securities. Defendants contend that conduct by Uribe, the principal of both ICA and Uris constituted doing business" in N ew York. They rely upon the fact that in 2003 Uribe approached Arizona in New York and proposed an arangement whereby orgainzations designated by Uribe would seek, the paries executed to expand the sale of products promoted by defendant. As a consequence contracts in 2003 2005 2006, in which Uribe was a paricipant, and another in 2007. Each of these agreements were executed in New York, at defendant's former location in Lake Success. They have since relocated to Woodbur. Until Uribe s serious ilness in 2007, culminating in his death in 2008, he came to New York on a monthly or sometimes a bi-monthly basis, at which time he would work for several days, discussing sales prospects and other business. He maintained an apartment in New York at which he stayed during his visits. Defendant contens that Uris and ICA were " doing business " in New York, were not registered with the Secretary of State, and are precluded from prosecuting this action in the State, and is of New York. They also contend that ICA has been dissolved in the State of Florida without standing to litigate this matter. The Second Cause of Action, for unjust enrichment, is also claimed to be duplicative of the claim for breach of contract, and must be dismissed for that reason alone. DISCUSSION Doin Business in New York Business Corporation Law ~ 1312, upon which defendant relies, provides as follows: ~ 1312. Actions or special proceedings by unauthorized foreign corporations
(a) 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, as defined in section eighteen hundred of such law, as well as penalties and interest charges related thereto, accrued against the corporation. This prohibition shall apply to any successor in interest of such foreign corporation. (b) The failure of a foreign corporation to obtain authority to do business in this state shall not impair the validity of any contract or act of the foreign corporation or the right of any other par to the contract to maintain any action or special proceeding thereon, and shall not prevent the foreign corporation from defending any action or special proceeding in this state. Whether or not an entity is "doing business" in the State of New York, and is very much fact dependent. Defendants have not produced any evidence that plaintiffs maintain an office or telephone listing, own any real propert, or have employees in New York. The activities are limited to the soliciting of business and facilitating the sale and delivery of merchandise incidental to its business in interstate and international commerce. Such conduct does not constitute "doing business" within the contemplation of ~ 1312. New York, (Uribe v. The Merchants Bank of 266 A.D.2d 21 (1st Dept.1999)V The fact that Mr. Uribe had an aparment in New York is inconsequential. It is not an office for the transaction of business by either of the two entities who are plaintiffs in the action. The Second Cause of Action for Equitable Relief Defendant contends that plaintiff is precluded from claiming the same damages under both a cause of action at law and in equity, when the same transactions or series of transactions form the basis for both claims. There is no claim that the contracts were in any way induced by fraud. When such is the case, the contract may be vitiated by the fraud, and the otherwise duplicative pleading on unjust enrichment is appropriate. (Framer S. CA. v. Abaplus International action. 1 Plaintiff was Hernando Uribe, not Albert Uribe, principal of plaintiffs in this
Corporation 2010 WL 2302367 (N.Y.A.D.1st Dept. 2010)). In the circumstances of this case the claims for unjust enrichment are subsumed in the breach of contract action and are therefore dismisses. (Grace Industries, Inc. v. New York City Dept. of Transp. 22 A.D.3d 262 263 (1 Dept.2005)); (Clark-Fitzpatrick, Inc. v. Long Is. R. R. Co. 70 N.Y.2d 382 389 (1987)). Lack ofsvecificity in Pleading Defendant contends that plaintiff has failed to state a cause of action upon which relief may be granted in that the Complaint "consists of vague, conclusory and indefinite allegations which lack the requisite paricularity to sustain a pleading. To be sure, there are certain causes of action which are specifically required to be pled with paricularity. (CPLR ~ 3016). Breach of Contract is not one of them. Specificity as to pleadings is otherwise governed by CPLR ~ 3013, which requires that (s)tatements in a pleading shall be sufficiently paricular to give the court and paries notice of the transactions, occurences, or series of transactions or occurences, intended to be proved and the material elements of each cause of action or defense The complaint 2 alleges a contract for commissions on the sale of beverages as a result of the efforts of Uris and ICA pursuant to a contract for the period commencing Januar 1, 2007 and terminating on December 31, 2008, a copy of which is anexed to the complaint. It alleges at that defendants have failed to make payments for international sales for the period of March 1 2008 - December 31, 2008, claimed to be in excess of $70 000, and for Mexico sales for the period Januar 1, 2008 - December 31, 2008, in the amount of $360 000. Such allegations certainly meet the ~ 3013 standard of apprising defendant of the transactions, occurrences, or series of transactions or occurences, intended to be proved. To the extent that fuher expansion is required, a demand for a bil of pariculars or other discovery devices are available to defendant. The motions to dismiss the complaint for lack of stading, and failure to adequately specify the claims in the complaint are denied. The motion to dismiss the Second Cause of Action for Unjust Enrichment is granted. 2 Exh. " A" to Motion.
Assuming no Answer has yet been filed in this action, one is to be interposed within thirt (30) days of the date of this Decision. A Preliminar Conference (see NYCRR 202.12) shall be held on August 4 2010, at 9:30 AM., before the undersigned in the Supreme Cour of Nassau County. Counsel for all paries are reminded that this matter has been assigned to the Commercial Division of the Supreme Court of Nassau County and the paries are directed to follow the Rules of this Division. This constitutes the Decision and Order of the Cour. Dated: June 21, 2010 ENTERED JUN 24 2010 NASSAU COUNTY COUNlY CLERK'S OFFICE