Showcase Limousine Inc.v.Carey

Appellate Division of the Supreme Court of New York, First DepartmentFeb 3, 2000
269 A.D.2d 133 (N.Y. App. Div. 2000)
269 A.D.2d 133703 N.Y.S.2d 22

February 3, 2000

Order, Supreme Court, New York County (Charles Ramos, J.), entered November 4, 1998, which granted defendant's motion to dismiss, unanimously modified, on the law, the facts, and in the exercise of discretion, to direct that the complaint be dismissed unless within 60 days plaintiff complies with the requirements ofBCL § 1312 Bus. Corp.(a), and otherwise affirmed, without costs.

Terence C. Scheurer, for plaintiff-appellant.

Linda Gerstel, for defendant-respondent.

ROSENBERGER, J.P., WILLIAMS, LERNER, SAXE, BUCKLEY, JJ.


Plaintiff is a limousine service incorporated and having its principal place of business in New Jersey. Plaintiff was employed in 199 3 by defendant to provide a chauffeur and allegedly entered into a contract in 1994 to be the exclusive chauffeur in exchange for a confidentiality agreement and a reduced fee. Soon after purchasing or leasing new vehicles for defendant's use, defendant terminated her contract, prompting this action alleging four causes of action for breach of contract, unjust enrichment, fraudulent inducement and promissory estoppel. On defendant's 3211(a) motion, the IAS court dismissed the complaint based on BCL § 1312 Bus. Corp. because plaintiff, while doing business in New York, has not obtained authorization from the Secretary of State and has not paid requisite taxes. In its complaint, plaintiff stated that it transacts business in this State, so the strictures of BCL § 1312 Bus. Corp.(a) clearly apply. The statute does not distinguish between legal and equitable causes of action. Although plaintiff's complaint is thus subject to dismissal, dismissal should have been conditioned upon plaintiff's failure to establish within a reasonable time that it had complied with BCL § 1312 Bus. Corp.(a) (Tri-Terminal Corp. v. CITC Industries, 78 A.D.2d 609). Plaintiff's application to substitute D'Onofrio as an alternative plaintiff was properly refused since all material allegations involved contractual relations between Showcase and Carey. The proposed addition of D'Onofrio lacks merit (Thomas Crimmins Contracting Co. v. City of New York, 74 N.Y.2d 166, 170).

A for-hire vehicle such as a limousine may only operate legally within New York City when licensed (New York City Administrative Code § 19-504). However, unlike compliance with the BCL provision, licensing by the New York City Taxi and Limousine Commission is not a condition precedent to the ability to sue since ";the statute does not provide expressly that its violation will deprive the parties of their right to sue on the contract" (Rosasco Creameries, Inc. v. Cohen, 276 N.Y. 274, 278). Thus, plaintiff's failure to be so licensed does not preclude this action.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.