BACKGROUND AND PROCEDURAL HISTORY Plaintiff commenced this action to recover assigned first party no fault benefits pursuant to a summons and complaint filed on April 16, 2019 seeking $3813.94 in damages. Defendant appeared by counsel on July 10, 2019 and filed an answer asserting thirty-two affirmative defenses, including that plaintiff lacks capacity to sue. THE PENDING MOTIONS On October 8, 2019, defendant moved for an order dismissing the complaint pursuant to CPLR §3211(a)(3), asserting that plaintiff lacks capacity to sue in New York State or alternatively compelling plaintiff to appear for a deposition to address that issue. That motion was adjourned to December 9, 2019. On December 9, 2019, defendant moved for an order vacating plaintiff’s notice of trial as premature, and striking the complaint, or alternatively compelling plaintiff to respond to outstanding discovery and appear for depositions. On August 5, 2020, the motions were submitted to this Court for determination. On consent of the parties, the two motions are consolidated herein for disposition, and the opposition and reply papers filed for the first motion shall be deemed applicable to both motions. DISCUSSION Defendant’s Motion to Dismiss Pursuant to CPLR §3211(a)(3) Is Denied Pursuant to CPLR §3211(a)(3) a defendant may move for dismissal on the ground that plaintiff lacks legal capacity to sue. BCL §1312(a) provides in pertinent part: (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. Defendant alleges that the fact that plaintiff has many law suits pending in New York State Courts is sufficient to show that plaintiff is doing business in New York. Defendant is mistaken in this regard. BCL §1301(b) provides in pertinent part: (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 carrying on in this state any one or more of the following activities: (1) Maintaining or defending any action or proceeding, whether judicial, administrative, arbitrative or otherwise, or effecting settlement thereof or the settlement of claims or disputes. Absent adequate proof to establish that plaintiff is doing business in New York, the presumption is that plaintiff is doing business in its state of incorporation, New Jersey (Cadle Company v. Hoffman 237 AD2d 555). In this case, defendant has not alleged any other fact that would suggest that plaintiff is doing business in New York. Based on the foregoing, the motion to dismiss is denied. Defendants motions pursuant to CPLR §3101 and CPLR §3126 are denied but the motion to vacate the notice of trial is granted Initially the court notes that a motion to compel discovery should be brought pursuant to CPLR §3124 not CPLR §3101. Assuming arguendo, that defendant had moved pursuant to the correct provision, the motion would still have to be denied. CPLR §3124 provides that “(i)f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response.” No notice to take plaintiff’s deposition was attached to the first motion. Discovery notices are attached to the second motion, but there is no evidence that defendant made any request for compliance, let alone made a good faith effort to resolve the issue. Based on this the court finds the motions premature at best. Denial is without prejudice to renewal if the parties cannot resolve outstanding discovery issues among themselves, and once defendant has demonstrated a good faith effort to do so. However, while plaintiff served a notice of trial dated October 21, 2019, no such document has been filed with the court. 22 NYCRR §202.21(a) requires that the notice of trial be filed with the court within 10 days of service and the fee paid. That does not appear to have happened in the case at bar. Based on the foregoing, defendant’s motion to vacate the notice of trial is granted. This constitutes the decision and order of this court. Dated: August 5, 2020
