New England Log Homes, Inc. v. Moody

Appellate Division of the Supreme Court of New York

New England Log Homes, Inc. v. Moody

194 A.D.2d 846, 598 N.Y.S.2d 618, 1993 N.Y. App. Div. LEXIS 5486

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 3, 1993

StatusPublished

Cited by1 cases

This text of 194 A.D.2d 846 (New England Log Homes, Inc. v. Moody) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

New England Log Homes, Inc. v. Moody, 194 A.D.2d 846, 598 N.Y.S.2d 618, 1993 N.Y. App. Div. LEXIS 5486 (N.Y. Ct. App. 1993).

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Opinion

Casey, J.

Appeal from that part of an order of the Supreme Court (Dier, J.), entered May 15, 1992 in Warren County, which, inter alia, denied plaintiffs motion for a default judgment.

Plaintiff in this breach of contract action contends that Supreme Court erred in failing to grant its motion for a default judgment against defendant Charles B. Moody. According to plaintiff, neither defendant submitted an answer and defendants’ motion seeking dismissal of the action for lack of personal jurisdiction as to defendant Susan B. Moody did not constitute an appearance by Charles Moody. We disagree and affirm Supreme Court’s order.

A defendant appears in an action by serving an answer or a notice of appearance or by making a motion which has the [847]*847effect of extending the time to answer (CPLR 320 [a]). An individual defendant may appear in person or by an attorney (CPLR 321 [a]). In addition to seeking dismissal of the action as to Susan Moody, the preanswer motion brought by defendants’ attorney on their behalf also sought an order "restraining” plaintiff from maintaining this action unless and until it complies with the requirements for foreign corporations doing business in this State contained in Business Corporation Law § 1312. This aspect of defendant’s motion was directed at plaintiff’s legal capacity to maintain the action (see, Continental Shows v Essex County Agric. Socy., 62 AD2d 1103) and, therefore, was properly a subject of a CPLR 3211 motion (see, CPLR 3211 [a] [3]), which has the effect of extending the time to answer (CPLR 3211 [f]). Accordingly, the motion constituted an appearance by both defendants (CPLR 320 [a]) and, therefore, neither defendant is in default.

Mikoll, J. P., Levine, Mahoney and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.

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Casey, J.

Appeal from that part of an order of the Supreme Court (Dier, J.), entered May 15, 1992 in Warren County, which, inter alia, denied plaintiffs motion for a default judgment.

Plaintiff in this breach of contract action contends that Supreme Court erred in failing to grant its motion for a default judgment against defendant Charles B. Moody. According to plaintiff, neither defendant submitted an answer and defendants’ motion seeking dismissal of the action for lack of personal jurisdiction as to defendant Susan B. Moody did not constitute an appearance by Charles Moody. We disagree and affirm Supreme Court’s order.

A defendant appears in an action by serving an answer or a notice of appearance or by making a motion which has the [847]*847effect of extending the time to answer (CPLR 320 [a]). An individual defendant may appear in person or by an attorney (CPLR 321 [a]). In addition to seeking dismissal of the action as to Susan Moody, the preanswer motion brought by defendants’ attorney on their behalf also sought an order "restraining” plaintiff from maintaining this action unless and until it complies with the requirements for foreign corporations doing business in this State contained in Business Corporation Law § 1312. This aspect of defendant’s motion was directed at plaintiff’s legal capacity to maintain the action (see, Continental Shows v Essex County Agric. Socy., 62 AD2d 1103) and, therefore, was properly a subject of a CPLR 3211 motion (see, CPLR 3211 [a] [3]), which has the effect of extending the time to answer (CPLR 3211 [f]). Accordingly, the motion constituted an appearance by both defendants (CPLR 320 [a]) and, therefore, neither defendant is in default.

Mikoll, J. P., Levine, Mahoney and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.

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Bluebook (online)

194 A.D.2d 846, 598 N.Y.S.2d 618, 1993 N.Y. App. Div. LEXIS 5486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-england-log-homes-inc-v-moody-nyappdiv-1993.

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