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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: November 6, 2018

Action Dismissed Because GBL 130 Violation Was Not Curable

On October 30, 2018, the First Department issued a decision in Robert v. Ringerjeans, LLC2018 NY Slip Op. 07272, dismissing an action due to an uncurable GBL 130 violation, explaining:

General Business Law § 130(9)’s prohibition against a person in violation of General Business Law § 130(1) maintaining any action or proceeding in any court in this state on any contract, account, or transaction, bars plaintiff from asserting any claims, including equitable claims. This is the only reading that gives effect to all of the provisions of the statute. It is consistent with our reading of an analogous statute, Business Corporation Law § 1312.

Ordinarily, absent an intent to deceive, a plaintiff may be granted leave, until entry of judgment, to cure the statutory violation. Here, however, because the contract is in the name of an LLC, plaintiff cannot comply; she cannot file an assumed name that includes a corporate identifier.

(Internal citations omitted).

New York procedural law is relatively straightforward. But there are rules, like the rule discussed in this decision relating to a plaintiff LLC failing to file to do do business under a dba, that can be traps for the unwary. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding New York procedural law.

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