Opinion
June 16, 1969
Goldman, Horowitz Cherno for plaintiff.
M. Carl Levine, Morgulas Foreman for defendant.
Motion to reargue is granted and on reargument the motion to vacate that portion of the order entered on April 24, 1969, directing an examination before trial of the plaintiff is denied and the examination is rescheduled for July 17, 1969, Wantagh Part, 9:30 A.M. or such adjourned time and/or place the parties agree to in writing and the clerk is directed to place this case on the trial calendar for September 15, 1969. By order entered November 19, 1968 (reargument denied December 3, 1968) Judge ZIPPER determined that the issue of whether the plaintiff was a foreign corporation doing business in this State was a question of fact to be determined at the trial. The defendant is therefore also entitled to determine whether the plaintiff paid franchise taxes pursuant to subdivision (a) of section 1312 of the Business Corporation Law if, for no other reason, it wishes to make a record on this issue since no reported cases have been found which relieve a foreign corporation, doing business in this State, from the hardship of inaccessibility to our courts without proof of payment of franchise taxes even though the foreign corporation has made delivery to defendant and may otherwise be entitled to recover. ( Oxford Paper Co. v. S.M. Liquidation Co., 45 Misc.2d 612; 6 ALR 3d 331; 1 Hornstein, Corporation Law Practice, § 292.)