Mintz & Gold v. Milne et al.

• Court: District Court, S.D. New York
• Decided: January 6, 2026
• Docket: 1:25-cv-05562
• Status: Unknown

Opinion

e a fete OF Se M i ntz & Steven W. Gold Julia B. Milne Senior Counsel Steven G. Mintz* James W. Kennedy Jack A. Horn Jeffrey D. Pollack* Ryan W. Lawler* Noreen E, Cosgrove oO Elliot G. Sagor Andrew A. Smith Timothy J. Quill, Jr. Ira Lee Sorkin Amit Sondhi a Lon Jacobs Michael Mooney Of Counsel Steven A. Samide Andrew E. Steckier Honorable Vito J. Titone (dec.) y yo Scott A. Klein Alex J. Otchy* NY State Court of Appeals 1985-1998 7p | a" Terence W. McCormick*** — Allison Pridmore Harvey J. Horowitz (dec.) : Robert B. Lachenauer Victoria F. Muth Honorable Pane Miller Roger L. Stavis Alexandra K. Kellers**** NY Appellate Div. 1999-2010 {ret Howard M. Topaz Carli M. Aberle aim □□ y? Philip E. Altman Zachary J. Turquand we a are Charles A. Ross** Kellyann T. Ryan om en q Richard M. Breslow Jason Leach**** in Barry M. Kazan* Sitie “Esther Tang A RIM {a Craig D. Spector* Benjamin S. Cotter en ds ie Alexander H. Gardner Justin T. Dailey ine ee Fi ( y Heath Loring wage sited in Taxes pr V Peter Guirguis □□□ ea'y tap ada Une Kingdom (Not □□□□□□□□ in the 1). t we ‘ = = ‘d J Le 4 rity Ade January 62026 un? (Al? Via CM/ECE yr ud be p poy VA Hon. Colleen McMahon Y gt ie ( United State District Court ¥ § 500 Pearl Street | \ i r

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7 January 6, 2026 M | ntz & Page 2 Gold

New York “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.” N.Y. Bus. Corp. Law § 1312(a). Non-Compliance with this statute precludes foreign corporations from using New York's courts as a legal forum. Williams Erectors of Suffolk County v. Mulach Steel Corp., 684 F.Supp. 357, 358 (E.D.N.Y. 1988). In an action where jurisdiction is based on diversity of citizenship, non-compliance with § 1312 precludes an unauthorized foreign corporation from maintaining suit in the federal courts as well as in the state courts of New York. See Netherlands Shipmortgage Corp., Ltd. v. Madias, 717 F.2d 731, 725 (2d Cir.1983); see also Verbal Judo Institute, Inc. v. Vistelar, LLC, 2018 WL 8800685 (N.D.N.Y. Jan. 22, 2018). “The Second Circuit has held that dismissal is an appropriate remedy for a violation of this statute”. /d. at *8. (citing S & K Sales Co. v. Nike, Inc., 816 F.2d 843, 853 (2d Cir. 1987)). However, New York Courts have also held that failure to obtain authorization is not a fatal jurisdiction defect to the action, rather the proper remedy in these cases is a conditional dismissal or for the court to stay the action until the unauthorized entity has become compliant with the statute. Manhattan Fuel Co. v. New England Petroleum Corp., 422 F. Supp. 797, 801 (S.D.N.Y. 1976); see also DeWan v. Seideman, 2017 WL 6048816 (S.D.N.Y. Dec. 5, 2017) (explaining failure to obtain authorization under analogous law N.Y. Limited Liability Company Law § 802(a)). An entity is considered doing business in the state, for the purposes of § 1312(a), if the business activities are systemic and regular as to manifest continuity of activity in the jurisdiction. Verbal Judo Institute, Inc., 2018 WL 8800685 at *8. Here, Plaintiff brings this action alleging breach of contract and unjust enrichment in relation to goods and services allegedly provided by Plaintiff to Cheery in the State of New York. See ECF DKT. No. 1.4 4. Plaintiff alleges that it is a foreign corporation that sells and exports goods, including marking samples and services related thereto in the United States. See ECF DKT. No. 1.§ 1. Plaintiff alleges that jurisdiction is based on diversity of citizenship. See ECF DKT. No. 1.9 3. Cheery, a New York Limited Liability Company, entered into a business relationship with Plaintiff to deliver goods to New York State. See ECF DKT. No. 1.4 4. Upon information and belief, based on a preliminary search of public import records, Plaintiff also contracted to perform similar services for several other New York entities, including but not limited to: Tinkr LLC; Tm Ny Brands, LLC; and Waverly 648 LLC. Plaintiff's business activities are systemic and regular and demonstrate continued activity in the jurisdiction. Upon information and belief, based on a preliminary search of New York State business records, Plaintiff is not registered to do business in New York. As such, Plaintiff is doing business in New York

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and is required to register to do business with the state under § 1312(a) in order to maintain this action. Defendant reserves the right to file a motion to dismiss and or move for conditional dismissal in the event that Plaintiff fails to become compliant with N.Y. Bus. Corp. Law § 1312(a). Defendant respectfully requests that this Court grant this letter motion for a stay pending Plaintiff's compliance with N.Y. Bus. Corp. Law § 1312(a).* Respectfully submitted, s/Carli M. Aberle Carli M. Aberle

cc: Steven W. Block (Via ECF)

Pursuant to New York Business Corporation Law, Plaintiff may cure this defect by filing an application for authority with the New York Department of State. Plaintiff will need to provide a certificate of existence from their jurisdiction of incorporation and obtain consent from the state □ tax commission by paying all fees and taxes imposed under the tax law. N.Y. Bus. Corp. Law §§ 1304; 1312. .

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