Sheldon v. Kimberly-Clark Corp.
| Decision Date | 24 June 1985 |
| Docket Number | KIMBERLY-CLARK |
| Citation | 490 N.Y.S.2d 810,111 A.D.2d 912 |
| Parties | Floyd SHELDON, Respondent-Appellant, v.CORPORATION, Appellant-Respondent; Peter J. Schweitzer, Inc., et al., Defendants; Schweitzer Division of Kimberly-Clark Corporation, etc., Respondent. |
| Court | New York Supreme Court — Appellate Division |
White & Case, New York City (Jeffrey Barist, Dwight A. Healy and Robert J. Morrow, New York City, of counsel), for appellant-respondent and respondent.
Meiselman, Farber, Stella & Eberz, P.C., Poughkeepsie (Arthur M. Rosenberg, Poughkeepsie, of counsel), for respondent-appellant.
Before MOLLEN, P.J., and LAZER, MANGANO and BROWN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, (1) plaintiff appeals from an order of the Supreme Court, Dutchess County, dated May 22, 1984, which denied his motion for leave to enter a default judgment and granted a cross motion to dismiss the action as against the Schweitzer Division of Kimberly-Clark Corporation, and (2) Kimberly-Clark Corporation appeals, as limited by its brief, from so much of an order of the same court (Dachenhausen, J.), dated December 14, 1983, as denied its motion for a protective order, or, in the alternative, for an order of confidentiality in regard to information obtained by plaintiff in his discovery and inspection of its Ancram, New York plant.
Order dated May 22, 1984 affirmed and order dated December 14, 1983 affirmed insofar as appealed from, without costs or disbursements.
Since the unincorporated Schweitzer Division of defendant Kimberly-Clark Corporation is not a jural entity amenable to suit in its own right, its joinder herein was improper and its failure to answer the complaint cannot, therefore, give rise to a default in appearance (cf. Provosty v. Lydia E. Hall Hosp., 91 A.D.2d 658, 659, 457 N.Y.S.2d 106, affd. 59 N.Y.2d 812, 464 N.Y.S.2d 754, 451 N.E.2d 501; Little Shoppe Around Corner v. Carl, 80 Misc.2d 717, 363 N.Y.S.2d 784). Defendant Kimberly-Clark Corporation, the legally cognizable corporate entity properly amenable to suit and answerable in damages, should plaintiff prevail, for the alleged wrongdoing attributed to the Schweitzer Division has, in fact, appeared and answered the complaint. There is, therefore, no default in appearance with respect to claims asserted against the Schweitzer Division. Accordingly, Special Term's order denying leave to enter a default judgment and dismissing the action as to the...
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