New York State Court of Claims

New York State Court of Claims

Ramada v. THE STATE OF NEW YORK, #2000-015-040, Claim No. 98718, Motion No. M-61472


A claim will be dismissed when a coroporation appears without an attorney in violation of CPLR 321(a).

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
No Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: C. Michael Reger, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 23, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the defendant for an order pursuant to CPLR 3025(b) permitting it to serve and file a second amended answer asserting as affirmative defenses that the claimant lacks standing to maintain this action and that the Court of Claims lacks jurisdiction of the claimant pursuant to CPLR § 321 (a), deeming the second amended answer as the operative pleading for the purposes of this motion and granting the defendant summary judgment pursuant to CPLR 3212 dismissing the claim based upon those affirmative defenses is granted. This is a claim for breach of contract against the New York State Thruway Authority with respect to the construction and erection of certain sound barriers along the I-95 Interstate highway between Larchmont and New Rochelle, New York. The claim, filed in July of 1998, alleges improper termination and seeks $700,000.00 in damages for breach of contract. The claim sets forth that claimant is a corporation with its office in Yonkers, New York.

Claimant originally appeared by attorney Thomas F. Farley. By a decision and order filed on February 16, 2000, this Court granted the motion of Thomas F. Farley and his professional corporation for an order permitting them to withdraw as the attorney of record for the claimant and staying all further proceedings in the claim until March 24, 2000 in order to permit the corporate claimant to obtain new counsel. This motion results from the claimant's failure to obtain new counsel.

The proposed second amended answer contains a fourth affirmative defense alleging that the claimant lacks standing to maintain the action because it is a corporation that is not appearing by an attorney, and the fifth affirmative defense alleging that the Court of Claims lacks jurisdiction of the claimant for the same reason. In an appropriate case, such as this, a motion to amend an answer may be granted and the amended answer deemed to be the operative pleading for the purpose of a summary judgment motion considered at the same time as the proposed amendment (Ficorp, Ltd. v Gourian, 263 AD2d 392). That is the procedure that will be followed here.

CPLR 321 (a) requires that a corporation appear by an attorney except in limited circumstances not present here. "A corporation is in default in a civil proceeding when it is not represented by an attorney" (Matter of Perre v 1470-1488 U&R, 247 AD2d 477, 478) and a complaint interposed on behalf of a corporation not appearing by an attorney must be dismissed (Cinderella Holding Corp. v Calvert Ins. Co., 265 AD2d 444; see Hilton Apothecary v State of New York, 89 NY2d 1024). Consequently, the defendant is entitled to summary judgment dismissing the claim.

May 23, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Order to show cause dated March 31, 2000;
  2. Affidavit of C. Michael Reger sworn to March 29, 2000, with exhibits.