Opinion
2014-01-15
Anshy HOLTZMAN, et al., respondents, v. KTB ATHLETICS SB TM, appellant.
Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (Glen S. Feinberg of counsel), for appellant. Eric H. Green, New York, N.Y. (Marc Gertler of counsel), for respondents.
Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (Glen S. Feinberg of counsel), for appellant. Eric H. Green, New York, N.Y. (Marc Gertler of counsel), for respondents.
In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated April 4, 2013, as denied those branches of its motion which were pursuant to CPLR 5015(a)(4) to vacate an order of the same court dated October 4, 2012, granting the plaintiffs' motion for leave to enter judgment against it upon its failure to interpose an answer, and pursuant to CPLR 3211(a)(8) to dismiss the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate the order dated October 4, 2012, and pursuant to CPLR 3211(a)(8) to dismiss the complaint are granted.
Those branches of the defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate an order dated October 4, 2012, entered upon its default in answering the complaint, and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of jurisdiction, should have been granted. The defendant demonstrated that it was not a jural entity amenable to suit and, in any event, that service of the complaint was defective ( see Pearson v. 1296 Pac. St. Assoc. Inc., 67 A.D.3d 659, 886 N.Y.S.2d 898; Sheldon v. Kimberly–Clark Corporation, 111 A.D.2d 912, 490 N.Y.S.2d 810; Flint Cr. Campground v. Cator, 29 Misc.3d 1216[A], 2010 N.Y. Slip Op. 51851[U] [Sup.Ct., Yates County, 2010]; CPLR 308).
The plaintiffs' remaining contentions are without merit. SKELOS, J.P., DILLON, DICKERSON and AUSTIN, JJ., concur.