Himelein v. Frank

155 A.D.2d 964, 547 N.Y.S.2d 775, 1989 N.Y. App. Div. LEXIS 14836

Opinion

— Order unanimously reversed on the law without costs, motion to dismiss denied, motion for default judgment granted and Clerk of Supreme Court directed to enter judgment accordingly. Memorandum: Defendant never appeared in this action brought under CPLR article 13A. Plaintiffs claim was for a sum certain and application for a default judgment could have been made to the Clerk (see, CPLR 3215 [a]). In the circumstances presented, the court had no authority to appoint counsel sua sponte or to entertain a motion to dismiss the complaint. Upon plaintiffs compliance with CPLR 3215 (e) the Clerk shall enter judgment. (Appeal from order of Supreme Court, Cattaraugus County, Horey, J. — forfeiture.) Present— Dillon, P. J., Green, Pine, Balio and Davis, JJ. [See, 141 Misc 2d 416.]