Friday, June 27, 2008

Do-Over Required Even Though Plaintiff Was Fraudulently Incorporated

Multiquest, P.L.L.C. a/a/o Jean Joseph Jeune v. Allstate Ins. Co.
(App. Term, 2nd Dept., decided 4/3/2008)

Although issued on April 3rd, this decision just hit the New York State Law Reporting Bureau's website this morning.

Allstate moved for summary judgment to dismiss plaintiff's recovery action based on it having already been adjudicated in Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc. 3d 37 (App Term, 2d & 11th Jud Dists 2007) that Multiquest PLLC was fraudulently incorporated. Queens Civil denied Allstate's motion, presumably with prejudice.

In a 2-1 decision (Pesce and Rios; Golia), the Appellate Term MODIFIED the order by providing that Allstate's motion was denied without prejudice to renewal upon proper papers, apparently because Allstate's motion papers did not include copies of the parties' complaint and answer, as summary judgment motions must do under CPLR Rule 3212 (b).

Justice Golia dissented:
The simplicity of the majority decision belies the reasoning which lies behind its singular determination. Indeed, my colleagues sua sponte raise the issue concerning the absence of the complaint and the answer, when a simple dismissal is not only the clear and obvious resolution but is also mandated by the facts and law. The pleadings are contained in the court's own file.

It is incontestable that at the time the services that are the subject of this claim were rendered, plaintiff Multiquest, P.L.L.C. was not eligible for reimbursement because it was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). This fact has been previously determined after the alleged incorporator, Dr. Kathryn Clark, testified that she was never an owner or manager of plaintiff (see Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]).

I find it inappropriate under these facts to now search for reasons to burden the parties and the courts with additional motions.

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