WAH WIN GROUP CORPORATION v. 979 SECOND AVENUE LLC (2026)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about June 14, 2024, which denied plaintiff Wah Win Group Corporation's motion for an extension of time to obtain replacement counsel and to file a note of issue, and granted defendant 979 Second Avenue LLC's cross-motion to dismiss the complaint pursuant to CPLR 3216(a) for failure to prosecute, unanimously affirmed, without costs.

Plaintiff's motion for an extension of time to retain counsel was properly denied.  Plaintiff is a corporation and may not proceed pro se (CPLR 321[a];  see Matter of Nieblas–Love v. New York City Hous. Auth., 212 A.D.3d 509, 510, 183 N.Y.S.3d 62 [1st Dept. 2023], lv dismissed 40 N.Y.3d 973, 196 N.Y.S.3d 719, 219 N.E.3d 360 [2023]).  There is no evidence that it assigned its claims to its non-attorney manager, who accordingly did not have authority or standing to represent the corporation in court (see id.;  Kinlay v. Henley, 57 A.D.3d 219, 220, 868 N.Y.S.2d 62 [1st Dept. 2008]).  To the extent that plaintiff claims not to have been served with papers by its prior counsel withdrawing from representation, its arguments are conclusory and fail to rebut the presumption of proper service based on the affidavits of service (see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55 [2009]).  Plaintiff's motion is otherwise supported by conclusory, unsupported statements as to why it was unable to retain counsel within statutory and court-imposed deadlines.

In addition, Supreme Court providently granted defendant's cross-motion to dismiss the action (see CPLR 3216;  see Baczkowski v. Collins Const. Co., Inc., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 [1997]).  Defendant satisfied the prerequisite for a motion pursuant to CPLR 3216 by issuing a 90–day notice, with which plaintiff did not comply (see CPLR 3216[b][3];  Perez v. City of New York, 95 A.D.3d 675, 677, 944 N.Y.S.2d 553 [1st Dept. 2012]).  Again, to the extent plaintiff claims it was not served with the notice, it fails to rebut the affidavit of service creating a presumption of proper service.  Dismissal was a proper remedy because, in opposition to the motion, plaintiff did not demonstrate a lack of intention to abandon prosecution of the action, having failed to sufficiently show that its extensive delay was justified or excused, or that it had a meritorious claim (see Espinoza v. 373–381 Park Ave. S., LLC, 68 A.D.3d 532, 533, 891 N.Y.S.2d 355 [1st Dept. 2009]).

We have considered plaintiff's remaining arguments and find them unavailing.