By notice of motion filed on November 15, 2013, under motion sequence number two, plaintiff 156-158 17th Street Corp. has moved pursuant to CPLR 3215 for an order granting a default judgment in its favor against defendant Artistic Reproductions NY LLC (hereinafter ARN).^[FN1]

Neither defendant appeared for oral argument or submitted written opposition to the motion.

[*2]BACKGROUND

On March 18, 2013, plaintiff commenced the instant action, by filing a summons and verified complaint with the Kings County Clerk's office. The complaint contains twenty seven allegations of fact in support of one cause of action for money damages for unpaid rent.

The complaint is verified by plaintiff's counsel and alleges the following salient facts, among others. Plaintiff is the owner of certain real property located at 156-158 17th Street, Brooklyn, New York. Plaintiff leased the premises to ARN and Stacy Ermilio for the period of February 2012 to February 2013 at a monthly rate of $2,200.00. On December 10, 2012, the parties agreed to a so-ordered stipulation in a New York City Civil Court proceeding under Index Number 9176/2012. By that agreement plaintiff's claim for rent arrears was severed and could serve as the basis for a future lawsuit. The defendants failed to make rent payments to the plaintiff in May of 2012 or thereafter. Stacy Ermilio is a member of ARN.

The defendants interposed a purported joint answer and counterclaim ^[FN2] dated April 19, 2013.

Plaintiff interposed a reply to counterclaim dated November 13, 2013.

PLAINTIFF'S MOTION PAPERS

Plaintiff's motion papers consists of a notice of motion, an affidavit of plaintiff's principal, John Terranova, and affirmation of its counsel and eight annexed exhibits. Exhibit 1 is described as the deed for the subject premise. Exhibit 2 is described as the lease for the subject premise. Exhibit 3 is a stipulation settling a landlord tenant action between John Terranova as landlord and ARN as tenant. Exhibit 4 is a copy of the instant summons and verified complaint. Exhibit 5 are affidavits of service of the summons and complaint upon ARN and Stacy Ermilio. Exhibit 6 is an affidavit of service of the summons and complaint upon ARN by service upon the Secretary of State. Exhibit 7 is the answer and counterclaim dated April 19, 2013, purportedly interposed by ARN and Stacy Ermilio. Exhibit 8 is plaintiff's reply to counterclaim dated November 13, 2013.

LAW AND APPLICATION

In order to succeed on a motion for default judgment, a plaintiff must comply with the procedural requirements set forth in CPLR 3215. First, the plaintiff must prove proper service of the summons and complaint on the defendant (Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2nd Dept 2011]). Additionally, the plaintiff must submit proof of the defendant's default in answering or appearing and must submit proof of facts sufficient to establish a viable claim (id.; also see CPLR 3215 [f]). CPLR 3215 (f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim, the default, and the amount due are to be set forth in an [*3]affidavit "made by the party" (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2nd Dept 2009]).

Limited Liability Company Law § 301 (a) provides in pertinent part that the secretary of state shall be the agent of every domestic limited liability company.Limited Liability Company Law § 302 (a) further provides that in addition to the designation of the secretary of state, each domestic limited liability company or authorized foreign limited liability company may designate a registered agent.

The two affidavits of the plaintiff's process servers establish prima facie proof of service of the summons and complaint upon ARN on March 22, 2013 (see Indymac Federal Bank FSB v Quattrochi, 99 AD3d 763 [2nd Dept 2012]). Service was completed using two method. The first was by personal delivery upon the Secretary of State. The second was by personal delivery upon Stacy Ermilio, a member and authorized agent for receipt of service of ARN.

Plaintiff's next hurdle is a showing that ARN failed to appear or answer the complaint (see CPLR 3215). Pursuant to CPLR 320, a defendant appears by serving an answer or notice of appearance, or by making a motion which has the effect of extending time to answer. An appearance shall be made within twenty days after service of the summons is complete (CPLR 320 [a]).

Plaintiff contends that ARN has not appeared or answered the complaint. However, the answer of Stacy Ermilio which is annexed to plaintiff's motion papers is denominated as the answer of ARN and Stacy Ermilio. The answer is signed on April 19, 2013, by Stacy Ermilio before a notary public and asserts a counterclaim for damages for loss of business.

Plaintiff has not sought a default judgment against Stacy Ermilio and has in effect accepted her answer. However, plaintiff contends that ARN must appear by counsel pursuant to CPLR 321(a) and cannot do so through Stacy Ermilio. It is noted that plaintiff did not promptly reject ARN's purported answer or notify ARN of its objection before the instant motion. Nor did plaintiff seek a court order striking the answer and directing ARN to appear by counsel.

CPLR 321(a) provides, in general, that a person may appear in an action through an attorney or pro se. However, with certain exception not applicable here, corporations and voluntary associations must appear by an attorney. In the case of Michael Reilly Design, Inc. v Houraney, 40 AD3d 592, 593 [2nd Dept 2007], the Appellate Division Second Department held that CPLR 321's prohibition on corporate self-representation also extends to the limited liability company. An LLC, therefore, cannot appear through one of its non-attorney members.

A corporate defendant's failure to retain counsel is grounds for entry of a default judgment against the corporation (Mail Boxes Etc. USA v Higgins, 281 AD2d 176 [1st Dept 2001). In Mail Boxes Etc. USA v Higgins, the motion court had previously directed the corporate defendant to appear by attorney, as required by CPLR 321 (a), within 30 [*4]days, or face default. The Appellate Division First Department found that the default judgment entered against the corporate defendant by the motion court for failing to appear by counsel was proper.

Plaintiff's claim that ARN is in default of answering the complaint is premised on the assumption that Stacy Ermilio, a member of ARN, is not an attorney. In fact, nowhere in its motion papers does plaintiff affirmatively state that Stacy Ermilio is not an attorney. Assuming that she is an attorney, she is permitted to act as ARN's counsel and simultaneously represent herself pro se. Furthermore, the failure to identify herself in the answer as ARN's attorney is a mere irregularity that may be overlooked pursuant to CPLR 2001. Assuming, that she is not an attorney, the court deems it more appropriate not to grant a default judgment at this time without first giving ARN an opportunity to appear by counsel by a date certain or be deemed in default. This is consistent with the method employed by the motion court in Mail Boxes Etc. USA v Higgins, supra.

Accordingly, plaintiff's motion for a default judgment against ARN is denied without prejudice. Defendant ARN must appear by counsel and file its proof of appearance with the Kings County Clerk's office on or before by March 3, 2014. If it fails to do so, the plaintiff may move for a default judgment against it.

The foregoing constitutes the decision and order of this court.

Enter________________________________x

J.S.C

Enter Forthwith________________________________x

J.S.C