Summary
holding that individuals can be liable for obligations incurred while they "purported to act on behalf of a corporation which had neither a de jure nor a de facto existence"
Summary of this case from The Fonda Group, Inc. v. LewisonOpinion
January 23, 1989
Appeal from the Supreme Court, Suffolk County (Saladino, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the settlement of a judgment in favor of the plaintiff and against the defendant Edward J. Cromer, III, individually, in the principal sum of $15,645.89, together with appropriate costs and disbursements.
The affidavits submitted in connection with the plaintiff's motion for summary judgment establish that in 1984 and 1985 certain "meats, provisions, goods and supplies", reasonably worth $15,645.89, were furnished by the plaintiff to the defendant. The defendant acknowledged that he personally received these goods at 868 Washington Street, New York, and that he signed various invoices reflecting the delivery of these goods to him. The defendant also acknowledged that the plaintiff was owed the sum of $15,645.89.
The sole basis for the defendant's opposition to the plaintiff's motion was based on his assertion that he had been conducting business as an agent for a corporation named "Edward J. Cromer, Inc." However, it appears that this corporation was dissolved in 1981 pursuant to Tax Law § 203-a and that this dissolution has not been annulled. Since the parties' affidavits reveal the existence of no material question of fact, we reverse the order of the Supreme Court and grant summary judgment to the plaintiff.
Upon its dissolution in 1981, Edward J. Cromer, Inc. was authorized to conduct business only to the extent necessary to wind up its affairs (see, Tax Law § 203-a; Business Corporation Law §§ 1009, 1005 [a] [1]; 172 E. 122 St. Tenants Assn. v Schwarz, 136 A.D.2d 370; Lorisa Capital Corp. v Gallo, 119 A.D.2d 99, 109-110). The plaintiff's sale to the defendant of certain goods in 1984 and 1985 was clearly not a transaction relating to the winding up of the corporation's affairs and the corporation therefore lacks the capacity to sue or to be sued in connection with that transaction (see, 15 N.Y. Jur 2d, Business Relationships, § 1193). The defendant, in effect, purported to act on behalf of a corporation which had neither a de jure nor a de facto existence (see, Lorisa Capital Corp. v Gallo, supra, at 110-111; Brady v State Tax Commn., 176 Misc. 1053, affd 263 App. Div. 955), and he is therefore personally responsible for the obligations which he incurred (see, Fuller v Rowe, 57 N.Y. 23, 26; Fiorentino Assocs. v Green, 85 A.D.2d 419, 420-421; Puro Filter Corp. v Trembley, 266 App. Div. 750; Worthington v Griesser, 77 App. Div. 203; Conway v Samet, 59 Misc.2d 666, 669; Poritzky v Wachtel, 176 Misc. 633; 15 N.Y. Jur 2d, Business Relationships, § 1026, at 287; 8 Fletcher, Cyclopedia of Corporations §§ 3761, 3820 [perm ed]).
In concluding that no material issue of fact exists in the present case, we have considered the certificate issued by the Secretary of State, dated January 6, 1987, which substantiates the assertion made by the plaintiff's attorney in the Supreme Court, that Edward J. Cromer, Inc. was dissolved by proclamation in 1981. We recognize, of course, the general rule that documents which were not submitted to the court of original instance may not be considered on appeal (see, e.g., Mi Suk Buley v Beacon Tex-Print, 118 A.D.2d 630; Broida v Bancroft, 103 A.D.2d 88). This rule, however, is subject to certain exceptions. It has long been the law that an incontrovertible official document, even though it is dehors the record, may be considered on appeal for the purposes of sustaining a judgment (see, Dunham v Townshend, 118 N.Y. 281, 286; State of New York v Peerless Ins. Co., 117 A.D.2d 370, 374; Kirp v Caleb's Path Realty Corp., 19 A.D.2d 744). The Court of Appeals has also recognized a narrow exception, which allows the consideration, on appeal, of reliable documents, the existence and accuracy of which are not disputed, even for the purposes of modifying or reversing the order under review (see, Crawford v Merrill Lynch, Pierce, Fenner Smith, 35 N.Y.2d 291, 298-299; see also, Zouppas v Yannikidou, 16 A.D.2d 52, 54; Felice v St. Agnes Hosp., 65 A.D.2d 388, 401-402 [Suozzi, J., concurring in part and dissenting in part]). Also, this court may, in general, take judicial notice of matters of public record (see, e.g., Rex Paving Corp. v White, 139 A.D.2d 176, 183, n 2; People ex rel. Glidden v Nemier, 133 A.D.2d 487, 489; Matter of Hartman v Joy, 47 A.D.2d 624; Matter of Sunhill Water Corp. v Water Resources Commn., 32 A.D.2d 1006, 1008; Sease v Central Greyhound Lines, 281 App. Div. 192, revd on other grounds 306 N.Y. 284).
In the present case, the defendant's argument on appeal is that the order under review should be affirmed "in view of the plaintiff-appellant's complaint". The defendant's sole contention is that the plaintiff's complaint must be amended so as to allege the previous existence, and subsequent dissolution of Edward J. Cromer, Inc. before he may be held personally liable. We find the defendant's failure to dispute the accuracy of the certificate of the Secretary of State to amount to a concession of its accuracy and that the subject corporation had in fact been dissolved a number of years prior to the transactions upon which this action is based.
The plaintiff is therefore entitled to payment for the goods which it sold to the defendant. Mangano, J.P., Bracken, Kunzeman and Balletta, JJ., concur.