Kinlay v Henley

Kinlay v Henley 2008 NY Slip Op 09450 [57 AD3d 219] December 2, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Jonathan Kinlay et al., Appellants,
v
Ronald Henley et al., Respondents, et al., Defendants.

—[*1] Jonathan Kinlay, New York, appellant pro se, and for Investment Analytics (Bermuda) Ltd., appellant.

Law Offices of Harry Issler, PLLC, New York (David K. Bowles of counsel), for respondents.

Order, Supreme Court, New York County (Herman Cahn, J.), entered November 21, 2007, which granted defendants-respondents' motion to dismiss all claims pleaded by the corporate plaintiff, unanimously reversed, on the law, with costs, the motion denied, and the claims of the corporate plaintiff reinstated.

The individual plaintiff is the owner and chief executive officer of the corporate plaintiff. Two months after plaintiffs' attorney was relieved by the court, defendants moved to dismiss the claims of the corporation pursuant to CPLR 321 (a), which requires a corporation to appear by an attorney. The corporation then assigned all of its claims in the action to the individual plaintiff, admittedly to evade CPLR 321 (a), a perfectly legitimate tactic (Kamp v In Sportswear, 39 AD2d 869 [1972], revg on dissenting op at App Term 70 Misc 2d 898 [1972]; see also Medical Facilities v Pryke, 172 AD2d 338 [1991]; Traktman v City of New York, 182 AD2d 814 [1992]). Nevertheless, the motion court dismissed the corporation's claims, finding the assignment to be "obviously a ploy" to avoid the law. On appeal, defendants acknowledge that good consideration was given for the assignment and do not otherwise challenge its validity. Instead they appear to argue that the appeal should be dismissed because the corporation fell into default once it purported to maintain the action without counsel, that the motion court's dismissal of the corporation's claims was in effect a default judgment, that no appeal lies from a default judgment, and that the corporation's remedy is to retain counsel and move to vacate its default. The [*2]argument is contrary to the above authorities and lacks merit. The individual plaintiff has obtained all of the corporation's claims, and thus CPLR 321 (a) does not apply. Concur—Mazzarelli, J.P., Saxe, Catterson, Renwick and Freedman, JJ.