Brand N.A. Lab LLC v One Styling LLC
Annotate this CaseDecided on July 14, 2020
Supreme Court, New York County
The Brand N.A. Lab LLC a/k/a THE BRAND GENOME LAB, Plaintiff,
against
One Styling LLC, COCCO HAIR PROFESSIONAL LLC f/k/a ENSOTOOLS, LLC, and DAVID KIM, Defendants.
657405/2019
Law Offices of Paul S. Haberman LLC, Tenafly, NJ (Paul Haberman of counsel), and Law Office of Stephen Ghee, PLLC, Queens Village, NY (Stephen Ghee of counsel), for plaintiff.
David Kim, pro se, for himself and Cocco Hair Professional LLC.
Gerald Lebovits, J.
This case arises out of a dispute over alleged unpaid professional fees between plaintiff, branding-services company Brand N.A. Lab LLC, and defendants, beauty brands One Styling LLC and Cocco Hair Professional LLC and David Kim, former president of One Styling and owner of Cocco Hair.
Plaintiff has alleged that defendants breached their contract by refusing to pay for agreed-upon services that plaintiff properly provided. In addition to these allegedly unpaid fees (approximately $50,000 to $75,000), plaintiff is seeking an injunction preventing defendants from using the intellectual property (branding, logos, and so forth) that plaintiff created to further defendants' business. Plaintiff also seeks to hold Kim personally liable on a veil-piercing [*2]theory.
Kim, acting pro se, now moves under CPLR 3211 to dismiss plaintiff's claims as against both himself and Cocco Hair for lack of personal jurisdiction and failure to state a cause of action. The motion is denied as to defendant Cocco Hair and granted as to defendant Kim.
With respect to Cocco Hair, the motion is denied because Kim could not properly move to dismiss on Cocco Hair's behalf. Cocco Hair is concededly an Ohio limited-liability company. (See NYSCEF No. 3 at 4, 26-29, 32-32.) As an LLC, Cocco Hair has independent legal status distinct from that of its members (like Kim). (See CPLR 321 [a].) Cocco Hair therefore may be represented only by an attorney, not by a non-attorney pro se like Kim. (See Michael Reilly Design, Inc. v Houraney, 40 AD3d 592, 593-594 [2d Dept 2007].) Kim's motion was a nullity to the extent it was brought on Cocco Hair's behalf.[FN1] (See Knobel v Wei Group, 160 AD3d 409, 410 [1st Dept 2018].)
With respect to Kim himself, however, the motion to dismiss for lack of personal jurisdiction is granted due to improper service. Kim's memorandum of law challenges the validity of service as to him. (See NYSCEF No. 3 at 6.) In response, plaintiff argues that it has established that it validly served process on Kim out of state under CPLR 313. (See NYSCEF No. 6 at 6.) But it has not.
CPLR 313 provides that a person subject to the jurisdiction of New York courts under CPLR 302 "may be served with the summons without the state, in the same manner as service is made within the state," by an appropriately authorized person. Here, both the confirmation of service and affidavit of service filed by plaintiff reflect that its authorized process server used leave-and-mail service under CPLR 308 (2) by leaving the summons and complaint with a co-resident at Kim's usual place of abode. (See NYSCEF No. 7, NYSCEF No. 11 at 1.) But there is no indication, either in the service documentation provided by plaintiff or in plaintiff's opposition to the motion to dismiss, that the necessary follow-up mailing occurred. Since plaintiff has not established that service on Kim occurred in the manner required for service within the state, that service did not satisfy CPLR 313. The absence of proper service under the CPLR deprives this court of personal jurisdiction, whether or not Kim ultimately received actual notice of plaintiff's action. (Macchia v Russo, 67 NY2d 592, 595 [1986].) Kim's motion to dismiss plaintiff's claims against him under CPLR 3211 (a) (8) is granted.[FN2]
Accordingly, it is hereby
ORDERED that the branch of Kim's motion seeking dismissal of plaintiff's claims against Cocco Hair is denied; and it is further
ORDERED that the branch of Kim's motion seeking dismissal of plaintiff's claims against him is granted.
DATE 7/14/2020 Footnotes
Footnote 1:The record reflects that Cocco Hair was properly served under CPLR 311-a (a) (iii) and CPLR 313. (See NYSCEF No. 10 [affidavit of service].) Given Cocco Hair's failure following service to appear through counsel, or to answer or move through counsel, it is in default.
Footnote 2:This court therefore does not reach Kim's argument that plaintiff failed to establish long-arm personal jurisdiction over him, or his argument that plaintiff's complaint failed to state a cause of action against him.
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