In Case of First Impression, Supreme Court of the State of New York Precludes Foreign Company from Continuing Lawsuit Until it is Authorized to do Business in New York

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Adopting arguments advanced by Kent, Beatty & Gordon, LLP, the Supreme Court of the State of New York found that New York Business Corporations Law § 1312 (BCL § 1312) could be used to bar a foreign corporation from asserting a claim in a New York court, notwithstanding the presence of a clause in the parties’ contract submitting to jurisdiction in New York

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In Credit Suisse International v. Urbi DeSarrollos Urbanos, S.A.V. de C.V., et al., the defendants—a Mexican homebuilder and its subsidiaries—were sued in New York State Supreme Court for allegedly breaching certain derivatives contracts. Defendants moved to dismiss the complaint, or in the alternative, to stay the action on the ground that the plaintiff—a Credit Suisse subsidiary organized under the laws of the United Kingdom—was conducting business in New York without authorization. BCL § 1312 bars a foreign corporation that conducts business in New York without authority from maintaining an action in New York’s courts.

Without disputing its non-compliance with BCL § 1312, Credit Suisse International (“CSI”) opposed Urbi’s motion by arguing that New York General Obligations Law § 5-1402 (GOL § 5-1402) supersedes BCL § 1312 and requires that CSI be permitted to bring and maintain the action. GOL § 5-1402 provides that, “notwithstanding any act which limits or affects the right of a person to maintain an action or proceeding,” “any person may maintain an action or proceeding against a foreign corporation“ if the action arises out of a contract that contains a New York choice of law clause and concerns more than one million dollars.

The Court agreed with Urbi’s argument that based on the legislative history of GOL § 5-1402, the phrase “act which limits or affects the right of a person to maintain an action” refers only to defenses based on forum non conveniens or lack of jurisdiction. Since BCL § 1312 deprives the plaintiff of capacity to sue, an issue distinct from lack of jurisdiction or forum non conveniens, the Court held that GOL § 5-1402 did not excuse plaintiff from complying with BCL § 1312 .

The defendants were represented by Jack A. Gordon and Joshua B. Katz, of the law firm Kent, Beatty & Gordon, LLP.

About Kent, Beatty & Gordon, LLP
Kent, Beatty & Gordon, LLP, founded in 1992, is a multi-disciplinary, AV-Rated law firm, emphasizing general commercial counseling and advice, general and complex commercial litigation and arbitration, and sophisticated transactional representation. KB&G was founded on the premise of offering clients who require savvy New York counsel a cost effective and exceptionally responsive alternative to the larger New York City firms. The firm is also adept at handling matters involving employment, executive compensation, hospitality, real estate and entertainment law.

Kent, Beatty & Gordon, LLP is a member of the International Society of Primerus Law Firms.

(Supreme Court of the State of New York / Credit Suisse International v. Urbi DeSarrollos Urbanos, S.A.V. de C.V.)

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Derek N. Hoeft

Jack A. Gordon, Esq.
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