33 A.D.2d 868 | N.Y. App. Div. | 1969
Appeal from an order of the Court of Claims, entered February 11,1969, which denied the State’s motion for an order dismissing the claim on the grounds that the Court of Claims lacked jurisdiction of the subject matter, and that the claim failed to state a cause of action. On or about May 27, 1968 claimants presented to the Secretary of State a certificate of incorporation of Baron Decorators, Ltd., which certificate was accepted and filed. Claimants allege that thereafter they were advised that the said name of Baron Decorators, Ltd., was not available because of a conflict with a corporation incorporated in 1940 known as Baron Decorating Service, Inc. (General Corporation Law, § 9.) Thereafter claimants filed an application for a change of name of their corporation to Carlin Decorators, Ltd., and allege that they have been damaged by reason of the negligence of the employee of the Secretary of State’s office who failed to advise them that the name applied for was not available, and that claimants were further damaged by reason of the necessity to change their corporate name. The trial court held that the claim does state a cause of action, and that the examination of the files in the Secretary of State’s office “ to ascertain the availability of a corporate name is purely a clerical or ministerial function for which an individual or private corporation could be liable if either of the latter performed the same in a negligent manner ”, The State contends that the act of the Secretary of State, in approving or