Ford Laboratories, Inc. v. Sharpe

39 A.D.2d 768, 333 N.Y.S.2d 731, 1972 N.Y. App. Div. LEXIS 4449

Opinion

In an action for an injunction, an accounting and damages due to defendants’ alleged unfair competition and conspiracy, defendants Samuel S. Sharpe and Sharpe Nutritionals, Inc., appeal from so much of an order of the Supreme Court, Nassau County, entered November 9, 1971, as denied their motion pursuant to CPLR 3211 (subd, [a], pars. 3, 7) to dismiss the complaint as against them on the ground that plaintiff Ford Laboratories, Inc'., is a foreign corporation which is doing business in this State without a license and accordingly lacks capacity to sue under section 1312 of the Business Corporation Law. Order affirmed insofar as appealed from, on consent, without costs and without prejudice to appellants’ right to set forth the appropriate allegations in their answer as a defense (Dari-Delite v. Priest & Baker, 50 Misc 2d 654; Ascher Corp. v. Horvath, 35 Misc 2d 375, 377), such answer to be served within five days after service of a copy of the order tó be made hereon, with notice of entry. Service of such answer is not otherwise to delay the trial of this action. Babin, P. J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.