Legal Question in Business Law in New York

Corporate names

I signed a contract in 2005 with Touseull Associates, Inc. d/b/a Tosell Construction over the course to time things went bad between the contractor and myself. The key factor for me is he had me write all my checks to Tosell Construction. Now here's the problem I found out that the dba Tosell Construction was discontinued since Sept. 2004. The contractor filed a mechanic's lien in the name of Touseull Associates, Inc. & Tosell Construction Corp. the contractor is trying to pass off the name Tosell Construction Corp. as if it were the dba mentioned above but it is not tosell Construction Corp. is an amended name change since Feb. 2004. The old name was Tosell Construction Corp. and they amended it to Touseull Associates, Inc. in Feb of 2004. What I need to know is can they use these names that are no longer in existence is that legal? It should also be noted that they have once again changed their name from Touseull Associates Inc. to Charles Touseull Inc. and they took the name of Touseull Associates, Inc and started a new corporation by the same name on Aug 21, 2006. Is my contract still valid with the discontinued dba on it and can they file a mechanic's lien with the old name of the corp and the new name.


Asked on 10/27/06, 10:03 pm

1 Answer from Attorneys
David Simon Hogan & Rossi

Re: Corporate names

If corporation is merely amending its certificate of incorporation to change its name, it is still the same company, and you can verify that with the Secretary of State. There are a number of companies in Albany that will search and get the records for you. The company I use is called Vanguard.

DBA certificates are filed in the county clerk's office where the corporation is located. You can check the county clerk's records to verify that information.

Also, if a lien foreclosure action was commenced, you can demand all that information in discovery and they will have to produce it because it is a legitimate concern.

As for the lien citing two names, the Lien Law is very technical, but I am not prepared to say that the mere use of 2 names automatically renders the lien defective.

As to the lien: the key to whether it is defective depends on what the corporation's real name was at the time the lien was filed. If they filed under the name Tousell Associates Inc. when the name was actually Charles Tousell Inc., there is a good argument the lien is defective because it identifies a completely different entity as the contractor which is patently false, and fabrication of a lien can bring you big damages.

Your contract is still valid with Charles Tousell Inc.

One caveat: if your contract permitted assignment, and it was assigned to the new Tousell Associates Inc., then your contract exists with the new corporation.

This is a complex area of the law and technical, and you should consult an attorney well versed in the lien law for assistance.

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Answered on 10/27/06, 11:39 pm


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