DeMartino v. Golden
| Decision Date | 31 May 2017 |
| Parties | Frank DeMARTINO, et al., appellants, v. Paul GOLDEN, etc., et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
150 A.D.3d 1200
52 N.Y.S.3d 892 (Mem)
Frank DeMARTINO, et al., appellants,
v.
Paul GOLDEN, etc., et al., respondents.
Supreme Court, Appellate Division, Second Department, New York.
May 31, 2017.
Bryan Ha, White Plains, NY, for appellants.
Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Mark K. Anesh and Paula Gilbert of counsel), for respondents.
In an action to recover damages for legal malpractice, breach of fiduciary duty, and abuse of process, the plaintiffs appeal from an order of the Supreme Court, Kings County (Toussaint, J.), dated October 29, 2014, which granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint, and denied their cross motion to deem the summons and complaint to have been adopted by counsel the plaintiffs retained after the summons and complaint were filed and served or for leave to amend the complaint.
ORDERED that the order is affirmed, with costs.
The Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted by the plaintiffs DeMartino Building Co., Inc., and 150 Centreville, LLC, and denied that branch of the plaintiffs' cross motion which was to deem the summons and complaint to have been adopted by counsel they retained after the summons and complaint were filed and served. A corporation and limited liability company must be represented by an attorney and cannot proceed pro se (see CPLR 321[a] ; Boente v. Peter C. Kurth Off. of Architecture & Planning, P.C ., 113 A.D.3d 803, 978 N.Y.S.2d 900 ; Michael Reilly Design, Inc. v. Houraney , 40 A.D.3d 592, 835 N.Y.S.2d 640 ). Here, DeMartino Building Co., Inc., and 150 Centreville, LLC, did not appear by an attorney when the summons and complaint were filed and served. Accordingly, the complaint, insofar as asserted by them, was a nullity, and the action as to them was improperly commenced (see Hilton Apothecary v. State of New York , 89 N.Y.2d 1024, 657 N.Y.S.2d 595, 679 N.E.2d 1075 ; Boente v. Peter C. Kurth Off. of Architecture & Planning, P.C ., 113 A.D.3d 803, 978 N.Y.S.2d...
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