2 North Broadway Food, Inc. v. Anduze

In an action to recover damages for legal malpractice, the defendant appeals from an order of the Supreme Court, Westchester County (Smith, J.), dated September 27, 2005, which, in effect, denied his motion to dismiss the complaint on the ground that the plaintiff lacked the capacity to sue. Ordered that the order is reversed, on the law, with costs, and the motion to dismiss the complaint is granted. The plaintiff, a dissolved corporation, lacked the capacity to commence the present action because it does not relate to the plaintiff’s winding up of its corporate affairs (see Business Corporation Law § 1005 [a] [1]; § 1006 [a]; Brandes Meat Corp. v Cromer, 146 AD2d 666, 666-667 [1989]; Lorisa Capital Corp. v Gallo, 119 AD2d 99, 110 [1986]; compare St. James Constr. Corp. v Long, 253 AD2d 754, 755 [1998]). Accordingly, the Supreme Court should have granted the defendant’s motion to dismiss the complaint (see CPLR 3211 [a] [3]). Adams, J.E, Krausman, Rivera and Lifson, JJ., concur.