Upon the following papers numbered 12-80 read on this motionto dismiss ; Notice of Motion and supporting papers 12-33 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers34-69 ; Replying Affidavits and supporting papers70-80 ; it is, [*2]

ORDERED that this motion by the defendants for an order dismissing the complaint is denied; and it is further

ORDERED that the parties are directed to appear for a preliminary conference, which shall be held on October 31, 2013 at 9:45 a.m., Supreme Court, Courtroom 7, Arthur M. Cromarty Criminal Court Building, 210 Center Drive, Riverhead, New York 11901.

The plaintiff Homes & Land, LLC ("Homes & Land"), is a Delaware limited liability company whose principal place of business is in Talahassee, Florida. It publishes two real-estate advertising magazines in New York. They are Homes of the Hamptons and Homes of Eastern Long Island. Homes & Land has published these magazines since November 2004, when it purchased the stock of Frontiers Unlimited, Inc. ("Frontiers Inc."), d/b/a the Miller Publishing Group, from the defendant James Miller. Frontiers Inc. merged with the plaintiff

Frontiers Unlimited, LLC ("Frontiers LLC"), in November 2010.^[FN1] Frontiers maintains an office in Southampton, New York.

The defendants Claudette Greenstein and Kathy Silvanovich were employed by Frontiers Inc. In April 2004, Greenstein entered into a confidentiality agreement with the Miller Publishing Group in which she agreed, inter alia, not to sell any services related to real-estate advertising in the Towns of Southampton, East Hampton, Riverhead, Southold, or Shelter Island during the term of her employment and for a period of one year thereafter (the "April 2004 agreement"). In November 2004, both Greenstein and Silvanovich entered into employment, confidentiality, and restrictive covenant agreements with Frontiers Inc. in which they agreed, inter alia, not to solicit any former or current customers of Frontiers Inc. with whom they had material contact during the last 24 months of their employment, for a period of 24 months after termination of their employment (the "November 2004 agreements").

In October 2012, Greenstein and Silvanovich resigned from their positions at Frontiers Inc. and began working for the defendant M3 Media Group, LLC ("M3"), which is owned by the former owner of Frontiers, the defendant James Miller. M3 publishes two competing real-estate advertising magazines entitled North Fork Real Estate Showcase and Hamptons Real Estate Showcase. In December 2012, Homes & Land commenced an action in the United States District Court for the Northern District of Florida to enjoin Greenstein and Silvanovich from violating their restrictive covenants. By an order dated February 2, 2013, that action was dismissed for failing to join Frontiers as a necessary party.

Frontiers LLC and Homes & Land subsequently commenced this action against Greenstein; Silvanovich; Miller; M3; and John Lasurdo, who provided layout design services to the plaintiffs and to M3. The complaint contains 11 causes of action for breach of contract, an accounting, misappropriation of trade secrets, breach of fiduciary duty, unjust enrichment, [*3]tortious interference with contract, aiding and abetting breach of fiduciary duty, tortious interference with economic advantage, and unfair competition. The defendants move to dismiss the complaint pursuant to CPLR 3211 (a) (1), (3), and (7).

The defendants contend that the plaintiffs lack standing to maintain this action. The defendants contend that Greenstein and Silvanovich were employed by and had restrictive-covenant agreements with Frontiers Inc., which is not a party to this action. The defendants also contend that, because Homes & Land is a Delaware limited liability company that is not authorized to do business in New York, it may not maintain an action in New York.

The defendants have produced a certificate of merger showing that Frontiers Inc. merged into Frontiers LLC on November 19, 2010. As the surviving entity, Frontiers LLC acquired all of the rights, privileges, immunities, powers and purposes, as well as all of the property of Frontiers Inc. (see, Limited Liability Company Law § 1004 [a]), including the right to enforce the April 2004 and November 2004 agreements.

It is undisputed that Home & Land is a foreign corporation that is not authorized to do business in New York. Business Corporation Law § 1312 (a) is a bar to the maintenance of an action by a foreign corporation found to be doing business in New York without the required authorization (S & T Bank v Spectrum Cabinet Sales, 247 AD2d 373). In order for a court to find that a foreign corporation is doing business in New York within the meaning of Business Corporation Law § 1312 (a), the corporation must be engaged in a regular and continuous course of conduct in the state (Highfill, Inc. v Bruce and Iris, Inc., 50 AD3d 742, 743). The doing-business standard under Business Corporation Law § 1312 (a) requires a greater amount of local activity by a foreign corporation than the doing-business standard applicable to New York's long-arm statute (CPLR 302) relating to personal jurisdiction (Maro Leather Co. v Aerolineas Argentinas, 161 Misc 2d 920, 924; see also, AirTran NY, LLC v Midwest Air Group, Inc., 46 AD3d 208, 214). The defendants bear the burden of proving that the plaintiff corporation's business activities in New York are not just casual or occasional, but so systematic and regular as to manifest continuity of activity in the jurisdiction (Highfill, Inc. v Bruce and Iris, Inc., supra at 743; S & T Bank v Spectrum Cabinet Sales, supra at 373). The defendants must show that the plaintiff conducted continuous activities in New York essential to its corporate business (Id. at 374). Absent sufficient evidence to establish that a plaintiff is doing business in this state, the presumption is that the plaintiff is doing business in its state of incorporation and not in New York (Highfill, Inc. v Bruce and Iris, Inc., supra at 743-744).

The court finds that the defendants have failed to establish, prima facie, that Home & Land is doing business in New York. Contrary to the defendants' contentions, the solicitation of sales in New York by employees of Frontiers does not constitute doing business in this state within the meaning of Business Corporation Law § 1312 (a) (see, Maro Leather Co. v Aerolineas Argentinas, supra at 924), nor does the maintenance of an office in New York (see, Stafford-Higgins Indus., Inc. v Gaytone Fabrics, Inc., 300 F Supp 65, 67). Business Corporation Law § 1312 (a) is a revenue measure designed to place foreign corporations on an [*4]equal footing with domestic corporations (Maro Leather Co. v Aerolineas Argentinas, supra at 924). It exists to regulate foreign corporations that are doing business within the state (see, Acno-Tech Limited v Wall Street Suites, L.L.C., 24 AD3d 392, 393). Home & Land has a separate New York company, Frontiers, to conduct its New York activities. The defendants have failed to demonstrate how the purposes of Business Corporation Law § 1312 (a) would be furthered by having Home & Land resister as doing business in New York (see, Storwal Intl., Inc. v Thom Rock Realty Co., L.P., 784 F Supp 1141, 1145). In any event, noncompliance with the registration and taxation requirements of Business Corporation Law § 1312 (a) does not raise a jurisdictional bar and may be cured during the pendency of the action (see, Maro Leather Co. v Aerolineas Argentinas, supra at 924; see also, Uribe v Merchants Bank of NY, 266 AD2d 21, 22). Accordingly, the branch of the motion which is to dismiss the complaint pursuant to CPLR 3211 (a) (3) is denied.

On a motion to dismiss pursuant to CPLR 3211, the sole criterion is whether the pleading states a cause of action and if, from its four corners, the factual allegations, taken together, manifest any cause of action cognizable at law (Guggenheimer v Ginzburg, 43 NY2d 268, 275). The court is to liberally construe the complaint, accept the alleged facts as true, and give the plaintiff the benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83, 87). A court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (Rovello v Orofino Realty, 40 NY2d 633, 635). When evidentiary material is considered, the inquiry turns from whether the complaint states a cause of action to whether the plaintiff actually has one. Unless it can be shown that a material fact as claimed by the plaintiff is not a fact at all and that no significant dispute exists regarding it, the complaint should not be dismissed (Guggenheimer v Ginzburg, supra at 275).

Under CPLR 3211 (a) (1), dismissal is warranted only if the documentary evidence submitted utterly refutes the plaintiff's factual allegations, conclusively establishing a defense to the asserted claims as a matter of law (see, Goshen v Mut. Life Ins. Co., 98 NY2d 314, 326; Leon v Martinez, supra at 88). In order for evidence to qualify as documentary, it must be unambiguous, authentic and undeniable (Granada Condominium III Assoc. v Palomino, 78 AD3d 996, 997). Affidavits are not documentary evidence, nor are letters and e-mails (Granada at 997; Fontanetta v John Doe 1, 73 AD3d 78, 85-87). If the evidence submitted is not "documentary," the motion must be denied (Fontanetta 84).

Applying these principles to the case at bar, the court finds that the plaintiff has set forth sufficient factual allegations to survive dismissal of its claims and that those claims are not defeated as a matter of law by the evidence submitted by the defendants, much of which is not documentary within the meaning of CPLR 3211 (a) (1). In view of the myriad of factual disputes that the parties' papers raise, the branches of the motion which are to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) are denied. [*5]

Dated:September 9, 2013

J.S.C.