N.Y. Business Corporation Law § 109: Actions or special proceedings by attorney-general

§ 109. 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 the doing

of unauthorized business;

(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 do

business in this state under section 1303 (Violations).

(7) Upon written 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

inspect the books and records of the corporation to the extent that such

inspection is available to shareholders and directors under the law of

this state. Such application shall contain a statement that the

inspection is necessary to protect the interests of the people of this

state. This paragraph applies to every corporation, no shares of which

are listed on a national securities exchange or regularly quoted in an

over-the-counter market by one or more members of a national or an

affliated securities association. This paragraph does not apply to a

corporation all shares of which are owned either directly or through a

wholly owned subsidiary by a corporation or corporations to which this

paragraph does not apply.

(8) To collect any fines payable to the department of state pursuant

to section four hundred nine 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 50.20 of the criminal procedure law.

(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 and foreign corporations authorized

to do business 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 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 desposit 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 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 on unauthorized foreign corporation) shall apply to process

served under paragraph (c).