442 Decatur Street, LLC v. Spheres Realty, Inc.

14 A.D.3d 535, 787 N.Y.S.2d 669, 2005 N.Y. App. Div. LEXIS 394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 2005
• Status: Published

Opinion

In an action for specific performance of a contract for the sale of real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated November 12, 2003, which denied its motion for summary judgment and granted the defendant’s motion for summary judgment dismissing the complaint and vacating its notice of pendency.

Ordered that the order is affirmed, with costs.

The plaintiff seeks, inter alia, specific performance of a real estate contract dated August 7, 2002, which was executed by the defendant Spheres Realty, Inc., also known as Spheres Realty-Cross Fields Locale, as seller, and the plaintiff, as purchaser. However, the plaintiff, a limited liability company, did not come into existence until September 2002, i.e., one month later, when its articles of organization were filed with the Department of State (see Limited Liability Company Law § 203). Under these circumstances, the Supreme Court properly determined that the plaintiff lacked the capacity in August 2002 to enter into a contract. At the time of the execution of the contract, the plaintiff was a “purported entity” which cannot “acquire rights by contract or otherwise” (183 Holding Corp. v 183 Lorraine St. Assoc., 251 AD2d 386-387 [1998] [internal quotation marks omitted]; see Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378, 389 [1958]; 18 CJS, Corporations § 88). Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint and vacating the notice of pendency.

The plaintiff’s remaining contentions are without merit. Florio, J.P., Schmidt, Adams and Cozier, JJ., concur.