Pinpoint Tech. 3, LLC v Mogilevsky

[*1] Pinpoint Tech. 3, LLC v Mogilevsky 2015 NY Slip Op 50204(U) Decided on February 23, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 23, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2013-1863 K C

Pinpoint Technologies 3, LLC, Appellant,

against

Michael F. Mogilevsky, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered May 20, 2013. The order, after a traverse hearing, granted defendant's motion to vacate a default judgment.

ORDERED that the order is reversed, without costs, and defendant's motion to vacate the default judgment is denied.

In this action to recover the principal sum of $2,597.55 for breach of a credit card agreement, defendant defaulted in answering, and a default judgment was entered on December 1, 2011. In February 2013, defendant moved to vacate the default judgment. The Civil Court granted the motion to the extent of ordering a traverse hearing. At the hearing, defendant failed to appear. However, defendant's wife purported to appear on his behalf, claiming that she had a power of attorney. Plaintiff's counsel objected to her appearance on behalf of defendant. The court noted that as defendant's wife had a power of attorney executed by defendant, she could "stand in" for defendant but she could not question witnesses and could not testify. At the conclusion of the traverse hearing, at which the process server testified, the Civil Court found that defendant had not been properly served, granted defendant's motion to vacate the default judgment and dismissed the action.

In our view, defendant's motion should have been denied based on his failure to appear at the traverse hearing. Although defendant's wife purported to appear on defendant's behalf based on a power of attorney, it is well settled that " [a] person not licensed to practice law in the State of New York pursuant to the Judiciary Law may not appear pro se in court on behalf of a litigant as an attorney-in-fact pursuant to a power of attorney,' as that constitutes the unauthorized practice of law" (91 E. Main St. Realty Corp. v Angelic Creations by Lucia, 24 Misc 3d 25, 28 [App Term, 9th & 10th Jud Dists 2009], quoting Whitehead v Town House Equities, Ltd., 8 AD3d 369, 370 [2004]). Moreover, even were defendant not in default, his claim of lack of personal jurisdiction should have been rejected based on the process server's detailed testimony as to his service of process.

Accordingly, the order is reversed and the motion to vacate the default judgment is denied.

Pesce, P.J., Weston and Elliot, JJ., concur.

Decision Date: February 23, 2015