Plaintiff Cannot Sue Under an Unregistered Fictitious Name

On December 23, 2021, Justice Masley of the New York County Commercial Division issued a decision in Bldg 44 Devs. LLC v. Pace Cos. N.Y., LLC, 2021 NY Slip Op. 32777(U), holding that a plaintiff cannot sue under an unregistered fictitious name, explaining:

GBL §130(1)(b) prohibits an entity from conducting business under any name except its legal name unless the entity first files in the office of the secretary of state a certificate setting forth the name or designation under which business is carried on or conducted or transacted, its corporate, limited partnership or limited liability company name, GBL 130(9) prohibits an entity which has not complied with GBL §130(1)(b) from maintaining an action or proceeding in any court in this state.

Third-Party plaintiff Pace initiated this action based on a contract with Pace Mechanical Corp., a company that has never existed. The contract does not mention any other Pace entity unlike Unique Laundry Corp., 55 AD3d 382 (1st Dept 2008), a case relied upon by Pace. In Unique Laundry, plaintiff’s registered name was “Unique Laundry Service, Inc.” The signature block read Unique Laundry Corp.,” a name that was never filed with the Secretary of State. However, “Unique Laundry Service” appeared on the letterhead of the contract and thus plaintiff could proceed with the case. That the word “Pace” appears in the Pace Mechanical Corp. name does not save Pace’s claim here.

Pace’s reliance on subsequent change orders with the proper Pace entity named is misplaced since the change orders are not mentioned in the Third-Party complaint. Moreover, the change orders begin with initial purchase order with Pace Mechanical
Corp.

Further, Pace’s reliance on its merger between PCNY Inc. and a Delaware corporation having the same name with the surviving entity converted to a limited liability corporation named “The Pace Companies of New York, LLC” is also misplaced. This corporate merger has nothing to do with Pace Mechanical Corp.

Finally, Pace cannot cure the problem by filing a certificate with the Secretary of State because the name Pace Mechanical Corp. contains the organizational modifier “Corp.” which is prohibited as a d/b/a by 19 NYCRR §156.4(c)(1). Indeed, Pace does
not offer to do so, relying, instead, on its corporate merger theory.

(Internal quotations and citations omitted).