In Credit Suisse International v. Urbi DeSarrollos Urbanos, S.A.V. de C.V., et al., the defendants—a Mexican homebuilder and its subsidiaries—were sued in New York State Supreme Court for allegedly breaching certain derivatives contracts. Defendants moved to dismiss the complaint, or in the alternative, to stay the action on the ground that the plaintiff—a Credit Suisse subsidiary organized under the laws of the United Kingdom—was conducting business in New York without authorization. BCL § 1312 bars a foreign corporation that conducts business in New York without authority from maintaining an action in New York’s courts.
Without disputing its non-compliance with BCL § 1312, Credit Suisse International (“CSI”) opposed Urbi’s motion by arguing that New York General Obligations Law § 5-1402 (GOL § 5-1402) supersedes BCL § 1312 and requires that CSI be permitted to bring and maintain the action. GOL § 5-1402 provides that, “notwithstanding any act which limits or affects the right of a person to maintain an action or proceeding,” “any person may maintain an action or proceeding against a foreign corporation“ if the action arises out of a contract that contains a New York choice of law clause and concerns more than one million dollars.
The Court agreed with Urbi’s argument that based on the legislative history of GOL § 5-1402, the phrase “act which limits or affects the right of a person to maintain an action” refers only to defenses based on forum non conveniens or lack of jurisdiction. Since BCL § 1312 deprives the plaintiff of capacity to sue, an issue distinct from lack of jurisdiction or forum non conveniens, the Court held that GOL § 5-1402 did not excuse plaintiff from complying with BCL § 1312 .
The defendants were represented by Jack A. Gordon and Joshua B. Katz, of the law firm Kent, Beatty & Gordon, LLP.