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Rainbow Hospitality Mgt. v. Mesch Engin

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 29, 2000
270 A.D.2d 906 (N.Y. App. Div. 2000)

Summary

In Rainbow Hospitality Mgt. v. Mesch Eng'g (270 AD2d 906, 906 [4th Dept 2000]), the Fourth Department held that a corporate plaintiff that "did not exist when the conduct complained of occurred and sustained no injury as the result of that conduct" failed to state a legally sufficient claim for relief (Id.).

Summary of this case from Framan Mech., Inc. v. Dormitory Auth. of State

Opinion

March 29, 2000.

Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Negligence.

PRESENT: PIGOTT, JR., P. J., GREEN, PINE, HAYES AND HURLBUTT, JJ.


Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted defendants' motions to dismiss the amended complaint during the trial ( see, CPLR 4401). We reject plaintiff's contention that the motions were based upon plaintiff's lack of legal capacity to sue ( see, CPLR 3211 [a] [3]) and that defendants waived that defense by failing to raise it in their answers or by preanswer motion ( see, CPLR 3211 [e]). "There is a distinction between capacity to sue, which gives the right to come into court, and possession of a cause of action, which gives the right to relief in court" ( Kittinger v. Churchill Evangelistic Assoc., 239 App. Div. 253, 256; see, Field v. Allen, 9 A.D.2d 551). Defendants moved to dismiss the amended complaint on the ground that plaintiff has no right to relief because plaintiff did not exist when the conduct complained of occurred and sustained no injury as the result of that conduct. That objection "runs to the sufficiency of the complaint as failing to state facts sufficient to state a cause of action" ( Wells v. Merrill, 204 App. Div. 696, 698; see, Truty v. Federal Bakers Supply Corp., 217 A.D.2d 951, 951-952; Sterritt v. Heins Equip. Co., 114 A.D.2d 616, 617), which may be raised by motion at any time ( see, CPLR 3211 [e]; Schel v. Roth, 242 A.D.2d 697; Herman v Greenberg, 221 A.D.2d 251). On the merits, the record establishes that plaintiff possesses no interest sufficient to maintain this action and the amended complaint was therefore properly dismissed pursuant to CPLR 3211 (a) (7) ( see, Burdett Radiology Consultants v. Samaritan Hosp., 158 A.D.2d 132, 136; see also, Wells v. Merrill, supra, at 698-699; Carvel Farms Corp. v. Bartomeo, 50 Misc.2d 1073, 1077).


Summaries of

Rainbow Hospitality Mgt. v. Mesch Engin

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 29, 2000
270 A.D.2d 906 (N.Y. App. Div. 2000)

In Rainbow Hospitality Mgt. v. Mesch Eng'g (270 AD2d 906, 906 [4th Dept 2000]), the Fourth Department held that a corporate plaintiff that "did not exist when the conduct complained of occurred and sustained no injury as the result of that conduct" failed to state a legally sufficient claim for relief (Id.).

Summary of this case from Framan Mech., Inc. v. Dormitory Auth. of State
Case details for

Rainbow Hospitality Mgt. v. Mesch Engin

Case Details

Full title:RAINBOW HOSPITALITY MANAGEMENT, INC., D/B/A THE PLEASUREDOME…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 29, 2000

Citations

270 A.D.2d 906 (N.Y. App. Div. 2000)
705 N.Y.S.2d 765

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