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Barretta Realty Skyline Div. of Red Vision Systems, Inc v. Principal Land Abstract

New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 1, 2013

BARRETTA REALTY SKYLINE DIV. OF RED VISION SYSTEMS, INC., APPELLANT,
v.
PRINCIPAL LAND ABSTRACT, LLC, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered September 14, 2011.

Barretta Realty Skyline v Principal Land Abstract, LLC

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2013

PRESENT: WESTON, J.P., ALIOTTA and SOLOMON, JJ

The order granted defendant's motion to vacate a default judgment and denied plaintiff's cross motion for an award of attorney's fees and costs.

ORDERED that the order is modified by providing that defendant's motion to vacate the default judgment is denied; as so modified, the order is affirmed, without costs.

In this action sounding in breach of contract, defendant, a limited liability company (LLC), submitted an answer that was signed "Defendant Pro Se." Subsequently, plaintiff moved for summary judgment, which motion was granted upon defendant's default in submitting opposition papers. A judgment in the sum of $3,135 was entered against defendant on March 30, 2011. Thereafter, defendant, by its "principal," who was not admitted to practice law in the State of New York, moved to vacate the default judgment, and plaintiff cross-moved for an award of attorney's fees and costs pursuant to the Rules of the Chief Administrator (22 NYCRR) § 130.1-1 (a), (b). By order entered September 14, 2011, the Civil Court granted defendant's motion and denied plaintiff's cross motion.

LLCs, like corporations and voluntary associations, may only appear by attorney and cannot be represented by a member who is not admitted to practice law (see CPLR 321 [a]; Michael Reilly Design, Inc. v Houraney, 40 AD3d 592 [2007]; cf. CCA 1809, 1809-A). Notwithstanding the fact that defendant retained an attorney, and appeared by that attorney upon the return date of its motion to vacate the default judgment, defendant was not represented by an attorney when its moving papers were served and filed; rather, a principal of defendant, who was not an attorney, represented defendant at that time. Consequently, defendant's motion should have been denied, as its principal had no authority to make the motion (see CPLR 321 [a]; Bilello v Genesis Seafood, Inc., 12 AD3d 474 [2004]; Evans v Conley, 124 AD2d 981 [1986]).

Furthermore, we find that the Civil Court did not improvidently exercise its discretion in denying plaintiff's cross motion for attorney's fees and costs.

Accordingly, the order is modified by providing that defendant's motion to vacate the default judgment is denied.

Weston, J.P., Aliotta and Solomon, JJ., concur. Decision Date: March 01, 2013

20130301

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