My Ad Network, Inc. v Cogo Tech., Inc.

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My Ad Network, Inc. v Cogo Tech., Inc. 2018 NY Slip Op 32680(U) October 17, 2018 Supreme Court, New York County Docket Number: 653076/2018 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 10/18/2018 12:02 PM NYSCEF DOC. NO. 26 INDEX NO. 653076/2018 RECEIVED NYSCEF: 10/18/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. JOEL M. COHEN IAS MOTION 45 Justice ----------------------------------------------------------------------------X INDEX NO. MY AD NETWORK, INC., MOTION DATE Plaintiff, -v- MOTION SEQ. NO. 653076/2018 0910412018, 10/02/2018 002 003 COGO TECHNOLOGIES, INC., Defendant. DECISION AND ORDER ------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 12, 13, 14 were read on this motion to/for JUDGMENT - DEFAULT· The following e-filed documents, listed by NYSCEF document number (Motion 003) 21, 22, 23, 24 were read on this motion to/for AMEND CAPTION/PLEADINGS Upon the foregoing documents: Plaintiff, My Ad Network, Inc. commenced this action against Defendant Cogo Technologies, Inc. for breach of a technology license agreement. The instant motions seek a default judgment against Defendant (motion sequence 002) and leave to substitute the parties in this action in order to permit the case to proceed without the involvement of counsel (motion sequence 003). For the following reasons, Plaintiffs motion for a default judgment is DENIED and Plaintiffs motion to amend is GRANTED. My Ad Network, Inc., a corporation, purports to proceed prose in this action through its Chief Executive Officer, Brian Nash. This is prohibited by CPLR §321(a), which requires that all corporations be represented by an attorney in prosecuting or defending against an action. See People ex rel. Spitzer v Park Ave. Plastic Surgery, P. C~, 48 A.D.3d 367, 367 (1st Dep't 2008) (corporation is required, under most circumstances, to appear by counsel). This should come as 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 10/18/2018 12:02 PM NYSCEF DOC. NO. 26 INDEX NO. 653076/2018 RECEIVED NYSCEF: 10/18/2018 My Ad Network, Inc. v. Co go Technology, Inc. 653076/2018 2 no surprise to Plaintiff, as this Court (through its Principal Law Clerk) has informed the parties multiple times that a corporation must be represented by counsel in this case. Plaintiff appears to be inching towards curing this infirmity. It purports to have assigned its rights under the applicable contract to Mr. Nash, and now seeks to substitute Mr.. Nash as the plaintiff in its stead. As an individual, Mr. Nash would be able to proceed prose. To avoid burdening the parties and the Court with duplicative pleading and motion practice to move the pieces to their proper respective places, the Court shall use the discretion provided to it under CPLR §2001 to permit a "mistake, omission, defect or irregularity" to be corrected upon such terms that shall be just, so long as a substantial right of a party is not prejudiced. Here, permitting Plaintiff to amend the caption to reflect the assignment of claims will advance the litigation efficiently without prejudicing either party. Moreover, Plaintiffs proposed addition of Cogo Networks, Inc., as an additional defendant, which Plaintiff represents is under common ownership with Defendant Cogo Technologies, Inc., will be permitted as an amendment of the Complaint under CPLR § 3025. Plaintiff is directed to file an Amended Complaint to conform the allegations to identify the proper parties, consistent with the amended caption. Plaintiffs motion for a default judgment is denied. Having proceeded improperly as a pro se litigant, Plaintiff is in no position to take advantage of Defendant's apparent failure to respond to the Complaint. 1 1 In its "Motion for Substitution of Parties Post RJI" (NYSCEF 22), Plaintiff makes reference to a motion to dismiss purportedly filed by Defendant on September 14, 2018. That document, which might obviate a default judgment in any event, was not filed on NYSCEF or otherwise received by the Court. 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 10/18/2018 12:02 PM NYSCEF DOC. NO. 26 INDEX NO. 653076/2018 RECEIVED NYSCEF: 10/18/2018 My Ad Network, Inc. v. Co go Technology, Inc. 653076/2018 3 Therefore, it is: ORDERED Plaintiffs Motion for a Default Judgment is DENIED (Motion Sequence 002); it is further ORDERED Plaintiffs Motion to Amend the Caption is GRANTED; it is further ORDERED that the action shall bear the following caption: SUPREME COURT OF THE STA TE OF NEW YORK COUNTY OF NEW YORK Index No: 653076/2018 Brian Nash -PlaintiffCogo Technologies and Cogo Networks, LLC -Defendants- ORDERED that Mr. Nash shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), within 5 days, who are directed to mark the court's records to reflect the parties being added pursuant hereto; it is further ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address (ww.nycourts.gov/supctmanh)]; it is further ORDERED Mr. Nash is to file this Order with Notice of Entry, on Defendant Cogo Technologies, Inc., within 5 days from the date of this Order; it is further 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 10/18/2018 12:02 PM NYSCEF DOC. NO. 26 INDEX NO. 653076/2018 RECEIVED NYSCEF: 10/18/2018 My Ad Network, Inc. v. Co go Technology, Inc. 653076/2018 4 ORDERED Mr. Nash shall file an Amended Summons and Amended Complaint to conform to the Amended Caption within 30 days from the date of this Order; it is further ORDERED Mr. Nash shall serve both Defendants with the Amended Summons and Amended Complaint pursuant to CPLR §311 or BCL §306 within 10 days from the filing of the Amended Complaint; it is further ORDERED Defendants are to file an Answer, or other responsive pleadings, through counsel, within 30 days after being served; and it is further ORDERED all parties are to appear for a Preliminary Conference on January 8, 2019 at 10:00 a.m. This constitutes the Decision and Order of the Court. HON. JOEL M. COHEN 4~1 (J_ J.S.C. 10/17/2018 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 4 of 4 D D OTHER REFERENCE

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