Opinion
May 9, 1974
Order, Supreme Court, New York County, entered March 27, 1973, so far as appealed from, unanimously reversed, on the law, without costs and without disbursements, to deny defendants' cross motion to dismiss so much of the complaint as asserts a cause of action on behalf of Logistics Industries Corporation, and to reinstate such portion of the complaint. There are clear disputed issues of fact concerning the relationship of J-E Plastics to Logistics Industries and whether J-E has independent corporate status or is merely a division of Logistics, and accordingly, the complaint insofar as it alleges a cause of action on behalf of Logistics should not have been dismissed. Although the complaint alleges that J-E does possess corporate status, such however, is not binding on this motion in view of the factual issues raised (see Curry v. Mackenzie, 239 N.Y. 267, 272). Our disposition is without prejudice to defendants' right to allege in the answer that Logistics is "not the real party in interest or otherwise entitled to sue". ( Miltenberg Samton v. Overseas Investors, 24 A.D.2d 949; Reed v. Hopkins, 10 A.D.2d 897.)
Concur — Nunez, J.P., Kupferman, Lupiano, Steuer and Tilzer, JJ.