LLC v. Bocana, Inc., Defendant. (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 005) 1, 2, 16, 49, 60, 61, 62, 63, 64, 65, 66, 67 were read on this motion for JUDGMENT - DEFAULT.

In this action for breach of contract, plaintiff moves pursuant to CPLR 3215(a), for entry of a default judgment against Bocana, Inc. ("Bocana") based upon Bocana's failure to obtain new counsel to appear in the action pursuant to an Order of the Court.

BACKGROUND

Plaintiff commenced this action against the defendant on or about December 6, 2019, by the filing of a summons and verified complaint asserting two causes of action for breach of contract and account stated. The complaint seeks damages of $883,333.00 with interest (NYSCEF doc. no. 1, 2). Plaintiff now moves for a default judgment based upon defendant's failure to appear by an attorney as required by this court's Order, and requests that the matter be set down for an inquest on damages. No opposition to the motion was filed.

Initially, defendant, a corporation with its principal place of business located in California (NYSCEF doc. no. 2, complaint, para. 2), appeared by counsel, Manatt, Phelps & Phillip, LLP (Manatt, Phelps, & Phillips). By Order dated January 27, 2020, Marisa L. Balch, Esq., of Wagner Jones Helsley, PC (Wagner Jones Helsley), was admitted pro hac vice to represent defendant in this action (NYSCEF doc. no. 16).

Manatt, Phelps & Phillip and Wagner Jones Helsley subsequently moved to be relieved as counsel. By order dated December 1, 2021, Manatt, Phelps & Phillip and Wagner Jones Helsley's motion was granted (NYSCEF doc. no. 49). The order provided, in relevant part:

ORDERED that, within 7 days from entry said attorney [Manatt, Phelps & Phillip and Wagner Jones Helsley] shall serve a copy of this order with notice of entry upon the former client at its last known address by certified mail, return receipt requested and by regular mail, and upon all other parties by posting to the New York State Courts Electronic Filing System; and it is further

ORDERED that, together with a copy of this order with notice of entry served upon the former client, moving counsel shall forward a notice directing the former client to appoint a substitute attorney within 15 days from the date of mailing the notice and client shall comply therewith; and it is further

ORDERED that any new attorney retained by defendant shall file a notice of appearance with the Clerk of the General Clerk's Office (60 Centre Street, Room 119) and the Clerk of the Part within 30 days from the date the notice to retain new counsel is mailed

(NYSCEF doc. no. 49).

The Order further directed the parties to appear for a virtual status conference on February 2, 2022 and advised defendant that "its failure to appear by an attorney on the next scheduled court date may result in the granting of relief against it on default" (id.).

By affirmation dated January 3, 2022 (NYSCEF doc. no. 51), Ronaldo G. Blum of Manatt, Phelps & Phillip affirmed that on January 3, 2022, he complied with the terms of this court's order, by mailing to the defendant (by certified mail, return receipt requested and regular mail) a notice to retain new counsel and a copy of the December 1, 2021 order with notice of entry (NYSCEF doc. no. 50).

Plaintiff's counsel appeared for a virtual conference on February 15, 2022. Neither defendant nor any new counsel appeared for the defendant. As of the date of the instant decision, no new counsel has filed a notice of appearance on behalf of the defendant.

CPLR 321(a) requires that all corporations appear by counsel. Defendant, here, was served with a notice to retain new counsel, but failed to do so in violation of this court's directive. Additionally, defendant failed to comply with the deadlines set forth in this court's order and failed to appear by counsel for the February 2022 conference. The Uniform Rules for Trial Courts permits dismissal and judgment by default where a defendant fails to appear by order of the court (22 NYCRR 202.27[A]). The failure to obey court ordered deadlines, including scheduled appearance dates, is sufficient grounds for dismissal on default (See 60 E. 9th St. Owners Corp. v. Zihenni, 111 AD3d 511, 511-512 [1st Dept 2013]: see also Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. (Habiterra Assocs.), 5 NY3d 514, 521 [2005]).

Accordingly, it is hereby

ORDERED that the motion brought by plaintiff, Dr. Lawrence Laboratories, LLC for a default judgment against defendant Bocana (motion sequence 005) is granted, without opposition; and it is further

ORDERED that, pursuant to Uniform Rule 202.27, the defendant is in default and the answer of defendant is stricken; and it is further

ORDERED that, on or before December 29, 2022, plaintiff shall serve a copy of this order with notice of entry upon defendant, and, following service, shall file a note of issue and statement of readiness with the Clerk of the General Clerk's Office (60 Centre Street, Room 119), and pay the fee therefor; and it is further

ORDERED that such service upon 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 www.nycourts.gov/supctmanh)]; and it is further

ORDERED that, upon said filing and the payment of the appropriate fee, plaintiff shall notify the Clerk of Part 43 who shall, upon due notice, place this matter upon the trial calendar for an inquest as to damages.

12/22/2022

ROBERT R. REED, J.S.C.

Robert R. Reed, J.