Appeal by defendants from a judgment of the Civil Court, Richmond County (P. Straniere, J.), entered January 7, 2004, which awarded plaintiff the principal sum of $18,264.10.

Judgment reversed without costs and complaint dismissed without prejudice.

Plaintiff, Clove Road Deli, Inc., commenced the instant action to recover upon a promissory note executed by the corporate defendant and upon personal guarantees
given by the individual defendants to plaintiff in connection with the sale of a business. At trial, it was established that the payee on the subject promissory note and the party set forth in the contract as the seller of the business to the corporate defendant, was Clove Road Deli, Inc., notwithstanding the fact that no corporation existed under such name. In fact, the corporate name of the entity which owned the business was
Clove Rd. Deli & Grocery Inc. (the Corporation). It was further established that prior to the commencement of this action, the Corporation was involuntarily dissolved due to its failure to pay franchise taxes (see Tax Law § 203-a [7]). Inasmuch as the Corporation is dissolved and it never filed a certificate of conducting business under an assumed name, to wit, the named plaintiff herein, plaintiff is prohibited from maintaining this action (see General Business Law § 130 [9]; Ferber v Data Executives, NYLJ, Aug. 25, 1981 [App Term, 2d & 11th Jud Dists]; Supreme Realty Assoc. Co. v Korovessis, 171 Misc 2d 996 [1997]).

If plaintiff be so advised, it may commence a new action against defendants after plaintiff complies with all statutory prerequisites (see e.g. General Business Law § 130 [9]; Tax Law § [*2]203-a [7]; Ferber v Data Executives, NYLJ, Aug. 25, 1981 [App Term, 2d & 11th Jud Dists]).

Patterson, J. and Rios, J. concur.

Pesce, P.J., taking no part.
Decision Date: December 09, 2004