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Rubenstein v. Mayor
41 A.D.3d 826, 839 N.Y.S.2d 170
N.Y.A.D. 2 Dept.,2007
contractual relations, the defendants Thomas Castellano and Planet
the Supreme Court, Suffolk County (Jones, Jr., J.), dated March 30, 2006,
as, upon reargument, vacated a prior order of the same court dated
The plaintiff Denise Rubenstein and the defendant Christopher Mayor
agreed to form the plaintiff Bayshore Sunrise Corp. (hereinafter BSC) for
the purpose of renting certain premises and operating a laundromat there.
alleged that Mayor and his brother-in-law, the defendant Thomas
Castellano, had conspired “to squeeze [Rubenstein] out of her ownership
interest in BSC and were attempting, without the knowledge of
[Rubenstein], to default BSC under the terms of its lease,” so that Mayor
was executed, the appellants argued, inter alia, that BSC lacked the legal
capacity to enter into the lease, and thus they could not be held liable to
BSC for tortious interference with contractual relations. The Supreme
Court initially granted the appellants' motion, but, upon reargument, denied
that branch of their motion which was for summary judgment dismissing
410; 1 83 Holding Corp. v. 183 Lorraine St. Assoc., 251 A.D.2d 386, 386-
387, 673 N.Y.S.2d 745). Here, it is undisputed that at the time that the
lease was executed, BSC had not yet filed a certificate of incorporation
with the Secretary of State, and thus was not in existence pursuant to
Business Corporation Law § 403.
organization as a corporation in business dealings should not be allowed
to quibble or raise immaterial issues on matters which do not concern him
in the slightest degree or affect his substantial rights” ( Boslow Family Ltd.
Partnership v. Glickenhaus & Co., supra at 668, 827 N.Y.S.2d 94, 860
N.E.2d 711 [internal quotation marks omitted] ).
signed the lease, a lease modification agreement, and a lease termination
agreement, each time in his capacity as “president” of BSC. Therefore, and
because the one-day delay in BSC's formation was, from the appellants'
perspective, utterly inconsequential, the appellants cannot now be heard to
deny BSC's corporate status. Accordingly, the appellants failed to make a
prima facie showing of their entitlement to judgment as a matter of law,
and, upon reargument, the Supreme Court properly denied that branch of
their motion which was for summary judgment dismissing the complaint
insofar as asserted against them by BSC.
was executed, the appellants argued, inter alia, that BSC lacked the legal
capacity to enter into the lease, and thus they could not be held liable to
BSC for tortious interference with contractual relations. The Supreme
Court initially granted the appellants' motion, but, upon reargument, denied
that branch of their motion which was for summary judgment dismissing
410; 1 83 Holding Corp. v. 183 Lorraine St. Assoc., 251 A.D.2d 386, 386-
387, 673 N.Y.S.2d 745). Here, it is undisputed that at the time that the
lease was executed, BSC had not yet filed a certificate of incorporation
with the Secretary of State, and thus was not in existence pursuant to
Business Corporation Law § 403.
organization as a corporation in business dealings should not be allowed
to quibble or raise immaterial issues on matters which do not concern him
in the slightest degree or affect his substantial rights” ( Boslow Family Ltd.
Partnership v. Glickenhaus & Co., supra at 668, 827 N.Y.S.2d 94, 860
N.E.2d 711 [internal quotation marks omitted] ).
signed the lease, a lease modification agreement, and a lease termination
agreement, each time in his capacity as “president” of BSC. Therefore, and
because the one-day delay in BSC's formation was, from the appellants'
perspective, utterly inconsequential, the appellants cannot now be heard to
deny BSC's corporate status. Accordingly, the appellants failed to make a
prima facie showing of their entitlement to judgment as a matter of law,
and, upon reargument, the Supreme Court properly denied that branch of
their motion which was for summary judgment dismissing the complaint
insofar as asserted against them by BSC.
