§ 109 — Actions or special proceedings by attorney-general

§ 109. Actions or special proceedings by attorney-general.\n (a) The attorney-general may maintain an action or special proceeding:\n (1) To annul the corporate existence or dissolve a corporation that\nhas acted beyond its capacity or power or to restrain it from the doing\nof unauthorized business;\n (2) To annul the corporate existence or dissolve any corporation that\nhas not been duly formed;\n (3) To restrain any person or persons from acting as a domestic or\nforeign corporation within this state without being duly incorporated or\nfrom exercising in this state any corporate rights, privileges or\nfranchises not granted to them by the law of the state;\n (4) To procure a judgment removing a director of a corporation for\ncause under section 706 (Removal of directors);\n (5) To dissolve a corporation under article 11 (Judicial dissolution);\n (6) To restrain a foreign corporation or to annul its authority to do\nbusiness in this state under section 1303 (Violations).\n (7) Upon written application, ex parte, for an order to the supreme\ncourt at a special term held within the judicial district where the\noffice of the corporation is located, and if the court so orders, to\ninspect the books and records of the corporation to the extent that such\ninspection is available to shareholders and directors under the law of\nthis state. Such application shall contain a statement that the\ninspection is necessary to protect the interests of the people of this\nstate. This paragraph applies to every corporation, no shares of which\nare listed on a national securities exchange or regularly quoted in an\nover-the-counter market by one or more members of a national or an\naffliated securities association. This paragraph does not apply to a\ncorporation all shares of which are owned either directly or through a\nwholly owned subsidiary by a corporation or corporations to which this\nparagraph does not apply.\n (8) To collect any fines payable to the department of state pursuant\nto section four hundred nine of this chapter.\n (b) In an action or special proceeding brought by the attorney-general\nunder any of the provisions of this chapter:\n (1) If an action, it is triable by jury as a matter of right.\n (2) The court may confer immunity in accordance with the provisions of\nsection 50.20 of the criminal procedure law.\n (3) A temporary restraining order to restrain the commission or\ncontinuance of the unlawful acts which form the basis of the action or\nspecial proceeding may be granted upon proof, by affidavit, that the\ndefendant or defendants have committed or are about to commit such acts.\nApplication for such restraining order may be made ex parte or upon such\nnotice as the court may direct.\n (4) If the action or special proceeding is against a foreign\ncorporation, the attorney-general may apply to the court at any stage\nthereof for the appointment of a temporary receiver of the assets in\nthis state of such foreign corporation, whenever it has assets or\nproperty of any kind whatsoever, tangible or intangible, within this\nstate.\n (5) When final judgment in such action or special proceeding is\nrendered against the defendant or defendants, the court may direct the\ncosts to be collected by execution against any or all of the defendants\nor by order of attachment or other process against the person of any\ndirector or officer of a corporate defendant.\n (6) In connection with any such proposed action or special proceeding,\nthe attorney-general may take proof and issue subpoenas in accordance\nwith the civil practice law and rules.\n (c) In any such action or special proceeding against a foreign\ncorporation which has not designated the secretary of state as its agent\nfor service of process under section 304 (Statutory designation of\nsecretary of state as agent for service of process), any of the\nfollowing acts in this state by such foreign corporation shall\nconstitute the appointment by it of the secretary of state as its agent\nupon whom process against such foreign corporation may be served:\n (1) As used in this paragraph the term "resident" shall include\nindividuals, domestic corporations and foreign corporations authorized\nto do business in the state.\n (2) Any act done, or representation made as part of a course of the\nsolicitation of orders, or the issuance, or the delivery, of contracts\nfor, or the sale of, property, or the performance of services to\nresidents which involves or promotes a plan or scheme to defraud\nresidents in violation of the laws or the public policy of the state.\n (3) Any act done as part of a course of conduct of business in the\nsolicitation of orders from residents for property, goods or services,\nto be delivered or rendered within this state to, or on their behalf,\nwhere the orders or contracts are executed by such residents within this\nstate and where such orders or contracts are accompanied or followed by\nan earnest money desposit or other down payment or any installment\npayment thereon or any other form of payment, which payment is either\ndelivered in or transmitted from the state.\n (4) Any act done as part of the conduct of a course of business with\nresidents which defrauds such residents or otherwise involves or\npromotes an attempt by such foreign corporation to circumvent the laws\nof this state.\n (d) Paragraphs (b), (c), (d) and (e) of section 307 (Service of\nprocess on unauthorized foreign corporation) shall apply to process\nserved under paragraph (c).\n