In a June 28, 2011 decision by Justice Emerson, the court denied the defendants’ motion to dismiss the complaint pursuant to BCL §1312(a) which bars an action against a foreign corporation doing business in New York without authority. The plaintiff sought an order of prejudgment attachment pursuant to CPLR § 6201, alleging that the defendants diverted the plaintiff’s accounts receivables and refused to give an accounting of or return the funds. In denying the motion to dismiss, the court found that the defendants failed to establish that the plaintiff was “doing business” in New York because its connection to the State was limited to soliciting orders from and delivering goods to buyers, which does not constitute “doing business” within the meaning of the BCL. The court further determined that where a foreign corporation’s contacts were merely for the purpose of soliciting business and are incidental to the sale and delivery of goods, the corporation is engaging in interstate commerce and beyond the jurisdiction of the BCL.
Top Apex Enters. Ltd. v Cayton, Sup Ct, Suffolk County, June 28, 2011, Emerson, J, Index No. 42013-10.