Commissioners of the State Ins. Fund v Lawrence LaRose Constructions, LLC

[*1] Commissioners of the State Ins. Fund v Lawrence LaRose Constructions, LLC 2008 NY Slip Op 52575(U) [22 Misc 3d 1101(A)] Decided on December 11, 2008 Supreme Court, Suffolk County Whelan, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2008
Supreme Court, Suffolk County

Commissioners of the State Insurance Fund, Plaintiff,

against

Lawrence LaRose Constructions, LLC, Defendant.



23538-08



MAIDENBAUM & ASSOC., PLLC

Attys. For Plaintiff

1 Broadcast Plaza

Merrick, NY 11566

LAWRENCE LaROSE CONSTR., LLC

Defendant Pro Se

21 West Dr.

Sag Harbor, NY 11963

Thomas F. Whelan, J.

ORDERED that this motion (#

001) by the defendant for an order vacating its default in answering the plaintiff's summons and [*2]complaint, is considered under CPLR 321 and 5015 and is denied.

The record adduced on this motion reveals that the plaintiff commenced this action to recover monies due from the defendant, Lawrence LaRose Constructions, LLC , for unpaid premiums and surcharges due the plaintiff by reason of the defendant's alleged employment of uninsured subcontractors. On September 9, 2008, a default judgment was entered in favor of the plaintiff against the defendant in the amount of $4,445.02 by the Clerk of the Court.

By the instant motion, Lawrence LaRose, a non-party to this action, moves for an order vacating the default judgment obtained by the plaintiff against the defendant in September, 2008. For the reasons set forth below, said motion is denied.

CPLR 321 prohibits a corporation or voluntary association to appear in an action other than by counsel, except in certain limited circumstances not applicable to this court (see CPLR 321[a]). Recent Appellate authority has instructed that an LLC, like a corporation or voluntary association, is created to shield its members from liability and once formed, is a legal entity distinct from its members (see Michael Reilly Design, Inc. v Houraney, 40 AD3d 592, 835 NYS2d 640 [2d Dept 2007]). Consequently, an LLC, like a corporation or a voluntary association, may only appear in an action governed by CPLR 321 by an attorney and not by one of its members, who is not an attorney admitted to practice in this State (see Ibid at 40 AD3d 593-594).

Here, the instant motion (#

001) to vacate the default judgment previously entered against the defendant, Lawrence LaRose Constructions, LLC, was interposed by one Lawrence LaRose, a non-party to this action who has appeared herein in a self-represented capacity. While it appears that the movant has some relationship to the defendant, it is equally apparent that he is acting in a self-represented capacity and is not an attorney at law duly licensed to practice in this State.

Under these circumstances, the court denies the instant motion to vacate the judgment previously entered against the defendant on the grounds that it lacks jurisdiction to determine the merits thereof by reason of the improper appearance of the defendant by one other than an attorney duly licensed to practice law in this State.

DATED: ________________________________________________

THOMAS F. WHELAN, J.S.C.