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ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT). ​

The Second Department determined that the doctrine of incorporation by estoppel was properly applied in this  breach of contract (lease) case. Although plaintiff limited liability company did not exist at the time the lease was signed, defendant took possession of the property. Defendant was therefore estopped from escaping liability under the lease based on the nonexistence of plaintiff limited liability company:

“Since a nonexistent entity cannot acquire rights or assume liabilities, a corporation which has not yet been formed normally lacks capacity to enter into a contract”… . However, a corporation may be deemed to exist and possess the capacity to contract pursuant to the doctrine of incorporation by estoppel … . The doctrine of incorporation by estoppel, or corporation by estoppel, is based on the principle that “one who has recognized the organization as a corporation in business dealings should not be allowed to quibble or raise immaterial issues on matters which do not concern him [or her] in the slightest degree or affect his [or her] substantial rights” … . TY Bldrs. II, Inc. v 55 Day Spa, Inc., 2018 NY Slip Op 08345, Second Dept 12-5-18

CORPORATION LAW (INCORPORATION BY ESTOPPEL, ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT))/LIMITED LIABILITY COMPANY LAW (INCORPORATION BY ESTOPPEL, ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT))/CONTRACT LAW  (INCORPORATION BY ESTOPPEL, ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT))/LANDLORD-TENANT (INCORPORATION BY ESTOPPEL, ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT))/ESTOPPEL  (INCORPORATION BY ESTOPPEL, ALTHOUGH THE PLAINTIFF LIMITED LIABILITY COMPANY DID NOT EXIST AT THE TIME THE LEASE WAS SIGNED, DEFENDANT TOOK POSSESSION OF THE PROPERTY, UNDER THE DOCTRINE OF INCORPORATION BY ESTOPPEL, DEFENDANT CANNOT ESCAPE LIABILITY FOR BREACH OF THE LEASE (SECOND DEPT))

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DEFENDANT WAS OBSERVED WALKING UP AND DOWN DRIVEWAYS IN A RESIDENTIAL NEIGHBORHOOD; WHEN THE POLICE ASKED HIM TO STOP, HE RAN AND THE POLICED PURSUED; THE POLICE DID NOT HAVE “REASONABLE SUSPICION” JUSTIFYING PURSUIT; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
NOTICE OF CROSS MOTION DID NOT INCLUDE THE RELIEF SOUGHT OR THE GROUNDS FOR RELIEF AS REQUIRED BY CPLR 2214 (a), CROSS MOTION PROPERLY DISMISSED (SECOND DEPT).
PLAINTIFF WAS LEANING INSIDE THE OPEN DOOR OF A VAN WHEN THE VAN SUDDENLY MOVED FORWARD; THE RELATED VIOLATION OF THE VEHICLE AND TRAFFIC LAW CONSTITUTED NEGLIGENCE PER SE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF’S DECEDENT, A PATIENT IN DEFENDANT REHAB FACILITY, FELL WHEN WALKING UNATTENDED BACK TO HIS BED FROM THE BATHROOM; PLAINTIFF ALLEGED THE FAILURE TO PROVIDE A BED ALARM WAS A PROXIMATE CAUSE; THAT CAUSE OF ACTION SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE; DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PROPERLY GRANTED BECAUSE PLAINTIFF DID NOT SUBMIT EXPERT EVIDENCE IN OPPOSITION (WHICH WOULD NOT HAVE BEEN REQUIRED IF THE CAUSE OF ACTION SOUNDED IN NEGLIGENCE, AS THE MOTION COURT HAD HELD) (SECOND DEPT).
FATHER WAS NEVER PROPERLY INFORMED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND CHILD SUPPORT ENFORCEMENT PROCEEDING AND NEVER WAIVED THAT RIGHT, ORDER OF COMMITMENT REVERSED (SECOND DEPT).
DEFENDANT IN THIS FORECLOSURE ACTION PRESENTED SUFFICIENT EVIDENCE REBUTTING THE PROCESS SERVER’S AFFIDAVIT TO WARRANT A HEARING ON WHETHER SHE WAS PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT (SECOND DEPT).
Causes of Action Not in Notice of Claim Dismissed.
Collateral Estoppel Doctrine Will Not Be Invoked Unless there Has Been at Least One Full Hearing on the Issues Involved

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