140 E 35st St. LLC. v Booker

Civil Court of the City of New York, Kings County

Decided on May 21, 2026

Index No. LT No. 321189-25

Hannah Cohen, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent's motion for dismissal pursuant to CPLR 3211(a)(3) and or (7) for failure by petitioner to comply with New York Publishing Law section 206 and or to file the answer and ensuing opposition and reply.

Papers Numbered

Notice of Motion 1

Opposition 2

Reply 3

Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:

Petitioner commenced this nonpayment proceeding on November 12, 2025 seeking possession of the premises. Respondent appears with counsel and seeks to dismiss the proceedings per CPLR 3211(a)(1)(3) (7) in that petitioner has failed to comply with the NY [*2]Publishing Law § 206 or alternatively to file an answer.

In support of respondent's motion, respondent submits a printout from the NYS DOS website indicating that the LLC filed articles of organization on February 8, 2024 but failed to file an affidavit or certification with the New York State Department of State. Respondent argues that at the time this case was commenced the LLC had failed to publish its incorporation details as required by law which bars the petitioner from proceeding on this proceeding and seeks dismissal. Respondent submits several decisions from the civil court which support respondent's position.

In opposition petitioner submits documentation from February, April and May 2026 that petitioner is publishing in several newspapers in order to comply with LLC Law § 206. Petitioner argues that it may cure a failure to publish, and its late publication has cured any defect.

In reply respondent argues that as the certification was only filed after this case commenced and per the holding in Small Step Day Care LLC v Broadway Bushwick Builders L.P., 137 AD3d 1102 [2nd Dept 2016] dismissal is mandated.

On a motion to dismiss pursuant to CPLR 3211(a)(7) the court must determined whether accepting as true the factual allegations in the petition and according the plaintiffs the benefits of any favorable inferences, the plaintiff can succeed upon any reasonable views of the facts and whether the pleadings have a cause of action (See Rochdale Village Inc., v Zimmerman, 2 AD3d 827 [AD 2nd Dept 2003]). Additionally, the allegations in the pleadings cannot be vague or conclusory (see Stolanoff v Gahona, 248 AD2d 525 [AD 2nd Dept 1998]). The courts role in determining a motion to dismiss, is limited to determining whether the complaint state a cause of action (Frank v Daimler Chrysler Corp., 292 AD2d 118 [1st Dept 2002]). The standard is not whether a party has artfully drafted the pleadings, but whether deeming the pleading to allege whatever can be reasonably implied for its statements, a cause of action may be sustained (Stending Inc. v Thom Rock Realty co., 163 AD2d 46 [1st Dept 1990]). The pleading must be liberally construed and the court must accept the allegations as true (see MBK associated of New York LLC v Waddell, 2005 WL 5959961 [NY Co Supreme 2005]). If the allegations manifest any cognizable cause of action, the motion must be denied (See Fishberger v Vos, 51 AD3d 627 [2nd Dept 2008]).

Herein, petitioner's failure to comply with the publishing requirements of §206, at the time the proceeding was commenced does not preclude petitioner from commencing this proceeding. A failure to comply with the requirements of §206 does not constitute a jurisdictional defect warranting dismissal (See Willoughby Rehabilitation and Health Care Center LLC v Webster, 13 Misc 3d 1320(a) [Nassau Co Supreme Ct 2006]; Acquisition America VI LLC., v Lamadores, 5 Misc 3d 461 [Civ Ct NY Co 2004]). The court notes in Willoughby, supra, that petitioner had availed itself of the opportunity to cure which is afforded by the statute. The court went on the note, in the absence of a contrary legislative intent, the "court views the albeit belated publication... to satisfy the Limited Liability Company Law section 206 which in relevant part includes: Failure to cause such notice to be published and to file such proof within one hundred and twenty days of the effective date of the article shall prohibit limited liability company from maintaining any action or special proceeding in this state unless and until such limited liability company causes such notice to be published and filed such proof of publication." [*3]The court concluded the language of "unless and until" to be similar to Business Corporation Law section 1312(a) which prohibits foreign corporations from doing business in New York unless authorized to do so, is not a jurisdictional defect upon subsequent compliance, as the statute warrants nunc pro tunc application averting dismissal of the action (See Manhattan Fuel Co. Inc v New England Petroleum Corp., 442 F. Supp 797 801 [SDNY 1976], aff'd 578 F.2d 1368 [2nd Cir 1978], 1700 First Avenue LLC., v Parsons-Novak, 46 Misc 3d 30 [AT 1st Dept 2014]), Barklee Realty Co v Pataki, 309 AD.2d 310 [1st Dept 2003]). Courts have held that "subsequent compliance with [publication requirement] warrants nun pro func application," and thus a plaintiff after complying with 206 LLC, "is treated as though they had standing at the time the suit was filed." See Dual Groupe LLC v Gans-Mex, 932 F. Supp2d 569 [USDC, SDNY 2013] quoting 2004 McDonald Ave. Realty LLC v 2004 McDonald Ave. Corp, 25 Misc 3d 1204(a)[ Sup Ct Kings Co 2007]).

Other courts have held the failure to publish is curable and, in fact, subsequent compliance with §206 "warrants nunc pro tunc application averting dismissal." (2004 McDonald Ave. Realty, LLC v 2004 McDonald Ave. Corp, 25 Misc 3d 1204(4), 3 [Sup Ct, Kings County 20071, aff'd 50 AD3d 1021 [2d Dept 2008]; I cquisition Am. VI, LLC v Lamadore, 5 Misc 3d 461, 462 [Civ Ct, New York County 2004]; Rogers Realty LLC v McCallu, ST Misc 3d 1227(A),2 [Civ Ct, Kings County 2025]). Similarly, foreign LLCs are barred from maintaining proceedings unless they have received certificate of authority to do business in New York. (see NY Limit Liab Co § 808(a)). These non-compliant foreign LLCs can also cure after commencement of a case. (see Mobilevision Med. Imaging Servs., LLC v Sinai Diagnostic & Interventionql Radiologt, PC.,66 AD3d 685, 686 [2d Dept 2009] (petitioner "entitled to a reasonable opportunity to cure its noncompliance with the statute before dismissal of the proceeding should be considered"); Baslle v Mulholland, T3 AD3d 597 , 597 [ st Dept 2010] ("plaintiff LLC's failure to obtain a certificate of authority to do business in New York before initiating the action is not a fatal jurisdictional defect and such certificate has since been obtained"); OCF Brook Holdings, LLC v TKS Brooklyn Ctr. Holding, LLC,84 Misc 3d 1234(A) [Sup Ct, Kings County 2024]). In Small Step Day Care, LLC, the Appellate Division, Second Department held that the failure to comply with LLC law $ 206 precluded bringing the action. (see 137 AD3d at 1103). In Small Step, however, there was not even late compliance with the publication requirement and is thus distinguishable from the case herein. (see Small Step's Memo of Law at 2014 WL 12968136).'The only case cited in Small Step is Barclay Realty Co., LLC. v Padauk, (309 AD2d 310 1st Dept 2003]). In upholding the constitutionality of § 206 filing requirements, Barclay mentions BCL §1312, the foreign LLC law, both noted above, and other statutes that require administrative compliance for businesses to have access to the courts. Upon such compliance, the courts have allowed cases to continue even where the business was not in compliance at commencement.

General Business Law §130 requires any business doing business under an assumed name fulfill several filing requirements. §130(9) bars access to the courts if the business fails to comply. However, "[t]he certificate is not jurisdictional, and may be amended prior to entry of any judgement." (Cohen v OrthoNet New York IPA, Inc. , 19 AD3d 261,261 [1st Dept 2005f; see also Pat Pellegrini Flooring Corp. v Serota,20 Misc 3d 138(A) [App Term, 2d Dept 20081). Courts have held that compliance can be accomplished after the fact [of commencing a case] as [*4]the goal is compliance not punitive. Indeed, in Barclay, the court notes that §206, "which conditions the maintenance of an action or special proceeding on compliance with the publication requirement, provides an incentive to ensure that the required disclosure will be made." (see 309 AD2d at 316. In other words, once the compliance goal is reached, businesses should face no further penalty, including having to recommence proceedings.

This concept is similar to Multiple Dwelling Law §325 (MDL) and NYC Admin Code § 27-2097 require a current multiple dwelling registration (MDR) for a landlord recover rent. (see MDL §325(2); l5l Daniel Low, LLC v Gassab, 43 Misc 3d 134(A)[App Term, 2d Dept 2014]). ln Chan v Adossa,760 NYS2d 609,612, ([App Term, 2d Dept 2003]), the court notes that the legislative intent of banning the recovery of rent during the period of non-compliance "was to foster compliance." Thus, the lack of registration, even at commencement of a nonpayment proceeding, does not, require dismissal, so long as the goal of compliance is achieved. (see Id.).

As petitioner has both published and has begun filing with the Department of State, it has the capacity to maintain this proceeding and the case can move forward. Dismissal on this ground is denied.

Respondent's motion to file the answer is granted, responded to file an answer by June 5, 2026.

Respondents motion to dismiss pursuant to CPLR 3211(a)(3),(7) is denied.

The case is restored to the courts calendar on June 12, 2026 at 9:30 am, part D, rm 507, for trial or settlement.

This constitutes the decision and order of this court.

Dated: May 21, 2026

Brooklyn, New York

Hannah Cohen, J.H.C.