112. Actions or special proceedings by attorney-general.(a) The attorney-general may maintain an action or special proceeding:
(1) To annul the corporate existence or dissolve a corporation that has acted beyond its capacity or power or to restrain it from carrying on unauthorized activities;
(2) To annul the corporate existence or dissolve any corporation that has not been duly formed;
(3) To restrain any person or persons from acting as a domestic or foreign corporation within this state without being duly incorporated or from exercising in this state any corporate rights, privileges or franchises not granted to them by the law of the state;
(4) To procure a judgment removing a director of a corporation for cause under section 706 (Removal of directors);
(5) To dissolve a corporation under article 11 (Judicial dissolution);
(6) To restrain a foreign corporation or to annul its authority to carry on activities in this state under section 1303 (Violations).
(7) To enforce any right given under this chapter to members, a director or an officer of a charitable corporation. The attorney-general shall have the same status as such members, director or officer.
(8) To compel the directors and officers, or any of them, of a charitable corporation which has been dissolved under section 1011 (Dissolution for failure to file certificate of type of Not-for-Profit Corporation Law under section 113) to account for the assets of the dissolved corporation.
(9) Upon application, ex parte, for an order to the supreme court at a special term held within the judicial district where the office of the corporation is located, and if the court so orders, to enforce any right given under this chapter to members, a director or an officer of a non-charitable corporation. For such purpose, the attorney-general shall have the same status as such members, director or officer.
(10) To enjoin, void or rescind any related party transaction, seek damages and other appropriate remedies, in law or equity, in addition to any actions pursuant to section 715 (Related party transactions) of this chapter.
(b) In an action or special proceeding brought by the attorney-general under any of the provisions of this chapter:
(1) If an action, it is triable by jury as a matter of right.
(2) The court may confer immunity in accordance with the provisions of section six hundred nineteen-c of the code of criminal procedure.
(3) A temporary restraining order to restrain the commission or continuance of the unlawful acts which form the basis of the action or special proceeding may be granted upon proof, by affidavit, that the defendant or defendants have committed or are about to commit such acts. Application for such restraining order may be made ex parte or upon such notice as the court may direct.
(4) If the action or special proceeding is against a foreign corporation, the attorney-general may apply to the court at any stage thereof for the appointment of a temporary receiver of the assets in this state of such foreign corporation, whenever it has assets or property of any kind whatsoever, tangible or intangible, within this state.
(5) When final judgment in such action or special proceeding is rendered against the defendant or defendants, the court may direct the costs to be collected by execution against any or all of the defendants or by order of attachment or other process against the person of any director or officer of a corporate defendant.
(6) In connection with any such proposed action or special proceeding, the attorney-general may take proof and issue subpoenas in accordance with the civil practice law and rules.
(c) In any such action or special proceeding against a foreign corporation which has not designated the secretary of state as its agent for service of process under section 304 (Statutory designation of secretary of state as agent for service of process), any of the following acts in this state by such foreign corporation shall constitute the appointment by it of the secretary of state as its agent upon whom process against such foreign corporation may be served.
(1) As used in this paragraph the term "resident" shall include individuals, domestic corporations of any kind and foreign corporations of any kind authorized to do business or carry on activities in the state.
(2) Any act done, or representation made as part of a course of the solicitation of orders, or the issuance, or the delivery of contracts for, or the sale of, property, or the performance of services to residents which involves or promotes a plan or scheme to defraud residents in violation of the laws or the public policy of the state.
(3) Any act done as part of a course of conduct of business or activities in the solicitation of orders from residents for property, goods or services, to be delivered or rendered within this state to, or on their behalf, where the orders or contracts are executed by such residents within this state and where such orders or contracts are accompanied or followed by an earnest money deposit or other down payment or any installment payment thereon or any other form of payment, which payment is either delivered in or transmitted from the state.
(4) Any act done as part of the conduct of a course of business or activities with residents which defrauds such residents or otherwise involves or promotes an attempt by such foreign corporation to circumvent the laws of this state.
(d) Paragraphs (b), (c), (d) and (e) of section 307 (Service of process of unauthorized foreign corporation) shall apply to process served under paragraph (c).
Last modified: February 3, 2019