Ceco Steel Products Corp. v. Stellar Steel, Inc.

23 Misc. 2d 127, 201 N.Y.S.2d 368, 1960 N.Y. Misc. LEXIS 3241

• Court: New York Supreme Court
• Decided: April 6, 1960
• Status: Published

Opinion

Edgar J. Nathan, Jr., J.

Plaintiff moves for summary judgment. In the complaint it is alleged that plaintiff is a Nebraska corporation qualified to do business in the State of New York. The action is brought to recover the balance due on the sale of goods between June 1, 1959 and July 7, 1959. The agreed price and reasonable value was $14,992; $10,009.62 was paid, leaving a balance of $4,982.38.

The defendant in its answer sets forth a separate defense that the plaintiff Nebraska corporation was not authorized to do business in the State of New York; that the transaction took place in the State of New York, constituting the conduct of business here, and accordingly this action may not be maintained.

Plaintiff states that the reference to the plaintiff as a Nebraska corporation was in error. The exhibits herein conclusively demonstrate that plaintiff is in reality a Delaware corporation and that it made the sales which form the basis of this action subsequent to qualifying to do business in New York State. For the purposes of this motion, plaintiff has submitted an amended complaint.

Defendant objects to the amended complaint upon the ground that another corporation sought to be substituted as the plaintiff cannot be brought into the action in this manner. The objection is not well taken. (See Civ. Prae. Act, § 105). Under all the circumstances it cannot be said that plaintiff is attempting to substitute another entity. Moreover, defendant knows exactly the entity by which it is being sued and there is no dispute upon the basic issues.

The motion is granted. Settle order.