On February 2, 2023, the First Department issued a decision in Bldg 44 Devs. LLC v. Pace Cos. N.Y., LLC, 2023 NY Slip Op. 00483, holding that a company that used an unregistered business name had standing to bring claims, explaining:
Third-party plaintiff The Pace Companies New York, LLC’s (Pace) use of the unregistered assumed name of Pace Mechanical Inc. on the initial purchase orders did not warrant dismissal of its claims against Automated and Elite. Under similar circumstances, this Court did not dismiss claims where an unregistered assumed name was used in a transaction, the properly-registered name was disclosed, and there was no intent to defraud. The Unique Laundry Court also did not require the plaintiff to cure its defect through the filing of a properly-registered assumed name; indeed, the plaintiff could not have done so, as the corporate identifier in its unregistered assumed name would have prevented it from filing the proper certificate. This case warrants the same result.
While the unregistered assumed name of Pace Mechanical Corp. appeared on the initial purchase orders, Pace’s properly-registered assumed name of The Pace Companies also appeared on the face of the purchase orders, as well as in further discussions and transactions between the parties. Indeed, despite their present claims of confusion, Automated and Elite requested payment from The Pace Companies and cashed checks amounting to hundreds of thousands of dollars from The Pace Companies. The only time the name Pace Mechanical Corp. appears to have been reflected on any document was on the letterhead and signature blocks of the original purchase orders. Automated and Elite have never stated or argued that they were unaware of Pace’s true identity or that they were somehow defrauded or harmed by Pace’s incorrect use of the name Pace Mechanical Corp.
Furthermore, the purchase orders were modified and supplemented by several change orders that clearly identified Pace by its proper name and referenced the underlying purchase order numbers. Thus, as modifications of the original purchase orders, the change orders were part and parcel of the parties’ contracts, superseding the original purchase orders and reflecting that Elite and Automated had contracted with the proper corporate entity. While the change orders are not mentioned in the third-party amended complaint, the court should have considered them, as they were submitted by affidavit to supplement the pleading.
Ringerjeans, relied upon by the motion court, does not compel a different resul. Unlike in Ringerjeans, Pace’s unregistered assumed name Pace Mechanical Corp. was only used at the inception of the parties’ relationship and does not appear to have been used again throughout the parties’ course of dealing. In this case there can be little doubt that the purpose of the statute, to prevent deception and confusion, was achieved through the transaction itself.
(Internal quotations and citations omitted).