Summary
holding that a corporation that had not filed its certificate of incorporation did not yet exist and lacked capacity to contract
Summary of this case from FT Travel-New York, LLC v. Your Travel Center, Inc.Opinion
June 4, 1998
Appeal from the Supreme Court, Kings County (Dowd, J.).
Ordered that the order is affirmed, with costs.
The plaintiff seeks, inter alia, specific performance of a real estate contract dated April 1990 which was executed by the defendant 183 Lorraine Street Associates as seller, and the plaintiff as purchaser. However, the plaintiff, a corporation, did not come into existence until October 1991, i.e., 18 months later, when its certificate of incorporation was filed (see, Business Corporation Law § 403 Bus. Corp.). Under these circumstances, the Supreme Court properly held that the plaintiff lacked the capacity to contract in April 1990. At the time of the execution of the contract, the plaintiff was a "purported entity which 'cannot * * * acquire rights by contract or otherwise'" (see, Kiamesha Dev. Corp. v. Guild Props., 4 N.Y.2d 378, 389, quoting 18 CJS, Corporations, § 88). Accordingly, the Supreme Court properly dismissed the complaint.
The plaintiff's remaining contentions are without merit.
Mangano, P. J., Thompson, Santucci and Altman, JJ., concur.