Summary
finding that movant had satisfied this burden as to each claim
Summary of this case from Cedar Capital Mgmt. Grp. v. LillieOpinion
2014-01-29
Sandra BOENTE, appellant, v. PETER C. KURTH OFFICE OF ARCHITECTURE AND PLANNING, P.C., defendant.
Doron Zanani, New York, N.Y., for appellant.
In an action, inter alia, to rescind two contracts for architectural services and to recover consequential damages, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (O.Bellantoni, J.), dated October 25, 2012, as denied that branch of her motion which was for leave to enter a default judgment on the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was for leave to enter a default judgment on the complaint is granted, and the matter is remitted to the Supreme Court, Westchester County, inter alia, for an inquest to determine the amount of damages, if any, to which the plaintiff is entitled on her fourth cause of action to recover consequential damages, and for the entry of an appropriate judgment thereafter.
As the plaintiff correctly contends, the Supreme Court erred in accepting an untimely, pro se answer from the defendant corporation, and in thereby denying that branch of the plaintiff's motion which was for leave to enter a default judgment on the complaint. The proffered answer was a nullity, since a corporation must be represented by an attorney and cannot proceed pro se ( seeCPLR 321[a]; Pisciotta v. Lifestyle Designs, Inc., 62 A.D.3d 850, 853, 879 N.Y.S.2d 179; Bilello v. Genesis Seafood, Inc., 12 A.D.3d 474, 783 N.Y.S.2d 876; World On Columbus v. L.C.K. Rest. Group, 260 A.D.2d 323, 324, 689 N.Y.S.2d 64). Since the plaintiff's submissions on the motion established each of her claims prima facie ( see Nouveau El. Indus., Inc. v. Tracey Towers Hous. Co., 95 A.D.3d 616, 944 N.Y.S.2d 119), that branch of her motion which was for leave to enter a default judgment on the complaint should have been granted. We therefore remit the matter to the Supreme Court, Westchester County, inter alia, for an inquest to determine the amount of damages, if any, to which the plaintiff is entitled on her fourth cause of action to recover consequential damages, and for the entry of an appropriate judgment thereafter. MASTRO, J.P., COHEN, MILLER and HINDS–RADIX, JJ., concur.