Cent. Care Solutions, LLC v. Grand Great Neck, LLC

219 A.D.3d 1482

196 N.Y.S.3d 524

CENTRAL CARE SOLUTIONS, LLC, et al., plaintiffs,

Clean–Tex Services, Inc., appellant,

v.GRAND GREAT NECK, LLC, etc., et al., respondents.

2021-04489, 2021-09305, 2023-02425

Index No. 600342/20

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 28, 2023

September 27, 2023

McGrail & Bensinger LLP, New York, NY (Patrick Train–Gutie´rrez and Daniel C. Malone of counsel), for appellant.

Abrams Fensterman, LLP, White Plains, NY (Robert A. Spolzino of counsel), for respondents.

COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, PAUL WOOTEN, LILLIAN WAN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff Clean–Tex Services, Inc., appeals from (1) an order of the Supreme Court, Nassau County (Jack L. Libert, J.), entered November 2, 2020, (2) a judgment of the same court (David P. Sullivan, J.) entered May 17, 2021, and (3) an order of the same court (David P. Sullivan, J.) dated October 12, 2021. The order entered November 2, 2020, insofar as appealed from, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted by the plaintiff Clean–Tex Services, Inc., to the extent of directing that plaintiff to take all necessary actions to obtain authorization to conduct business in New York within six months to avoid dismissal of the amended complaint insofar as asserted by that plaintiff. The judgment, upon the order entered November 2, 2020, dismissed the amended complaint insofar as asserted by the plaintiff Clean–Tex Services, Inc., with prejudice. The order dated October 12, 2021, insofar as appealed from, denied the motion of the plaintiff Clean–Tex Services, Inc., for leave to renew its opposition to that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted by it or to vacate the order entered November 2, 2020, and the judgment.

ORDERED that the appeal from the order entered November 2, 2020, is dismissed; and it is further,

ORDERED that the judgment is modified, on the law and in the exercise of discretion, by deleting the provision thereof dismissing the amended complaint insofar as asserted by the plaintiff Clean–Tex Services, Inc., with prejudice, and substituting therefor a provision dismissing the amended complaint insofar as asserted by the plaintiff Clean–Tex Services, Inc., without prejudice; as so modified, the judgment is affirmed; and it is further,

ORDERED that the appeal from the order dated October 12, 2021, is dismissed as academic in light of our determination on the appeal from the judgment; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff Clean–Tex Services, Inc.

The appeal from the order entered November 2, 2020, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order entered November 2, 2020, are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

In January 2020, the plaintiff Clean–Tex Services, Inc. (hereinafter Clean–Tex), and two other plaintiffs commenced this action, inter alia, to recover damages for breach of contract. In March 2020, the defendants moved, among other things, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted by Clean–Tex on the ground, inter alia, that Clean–Tex lacked the capacity to sue pursuant to Business Corporation Law § 1312(a), as it was a foreign corporation doing business in New York without authority. Clean–Tex opposed the motion. In an order entered November 2, 2020, the Supreme Court, among other things, granted that branch of the motion which was to dismiss the amended complaint insofar as asserted by Clean–Tex to the extent of directing Clean–Tex to take all necessary actions to obtain authorization to conduct business in New York within six months or else the amended complaint insofar as asserted by Clean–Tex would be dismissed with prejudice upon the defendants’ submission of a proposed order of dismissal.

It is undisputed that Clean–Tex did not obtain authorization to conduct business in New York by the court-ordered deadline of April 29, 2021. However, on April 23, 2021, Clean–Tex...