| Jimenez v Brenillee Corp. |
| 2008 NY Slip Op 01640 [48 AD3d 351] |
| February 26, 2008 |
| Appellate Division, First Department |
| Genesis Jimenez, an Infant, by Her Mother and Natural Guardian,Ana Disla, et al., Respondents, v Brenillee Corporation, Defendant, and Jesseo RealtyLLC, Proposed Intervenor-Appellant. |
—[*1] Fotopoulos, Rosenblatt and Green, New York City (Alexander D. Fotopoulos of counsel), forrespondents.
Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered March 1, 2006, whichdenied the proposed intervenor's motion for leave to intervene or to set aside a 2003 judgment,unanimously affirmed, with costs. Appeal from order, same court and Justice, entered December15, 2006, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion forattorney's fees without prejudice to resubmission with proper accounting, unanimouslydismissed, with costs.
Proposed intervenor Jesseo Realty acquired real property subject to plaintiffs' judgment lien,and then moved to intervene and vacate the judgment for lack of jurisdiction (CPLR 5015 [a] [4])on the ground that the corporate defendant had not appeared by counsel, in violation of CPLR321 (a). For purposes of this appeal, we assume without deciding that Jesseo is an "interestedperson" as that term is used in CPLR 5015 (a) and thus that it had standing to move to intervene(see generally Oppenheimer v Westcott, 47 NY2d 595, 603 [1979]) The motion wasfactually and legally meritless. The record is devoid of any support for Jesseo's contention thatthe corporate defendant was unrepresented at the settlement. Moreover, even if the corporatedefendant were not so represented, its failure to appear by counsel would not have deprived thecourt of jurisdiction over it, but would have constituted a default permitting entry of judgmentagainst it (see Mail Boxes Etc. USA v Higgins, 281 AD2d 176 [2001], appealdismissed 96 NY2d 895 [2001]). A corporate defendant's failure to comply with CPLR 321provides no basis for vacating a judgment entered against that defendant, since the rule is notintended to penalize an adverse party for the corporation's improper appearance (Lake GeorgePark Commn. v Salvador, 245 AD2d 605, 607 [1997], lv denied 91 NY2d 939[1998]), but is rather to ensure that the [*2]corporation has alicensed representative who is "answerable to the court and other parties for his or her ownconduct in the matter" (Matter of Sharon B., 72 NY2d 394, 398 [1988]).
Absent any suggestion that the settlement entered into in open court and approved by thecourt following an infant's compromise hearing was a product of fraud, duress or mistake, or thatany other substantive basis for vacating the judgment exists, the proposed intervenor's motionwas properly denied (see Sanchez v Cityof New York, 40 AD3d 276 [2007]; Clark v Bristol-Myers Squibb & Co., 306AD2d 82 [2003]).
The proposed intervenor is not aggrieved by the order denying plaintiffs' motion for an awardof costs and expenses (see CPLR 5511; Insurance Co. of State of Pa. v Adessie Imports, Ltd., 24 AD3d 230[2005]). To the extent the parties correctly understood that order to mean it would grant themotion upon plaintiffs' submission of a proper affidavit of legal services, it did not affect asubstantial right (CPLR 5701 [a] [2] [v]), but simply deferred disposition of the motion;therefore, it is not reviewable (Marriott Intl. v Lonny's Hacking Corp., 262 AD2d 10[1999]). Concur—Tom, J.P., Saxe, Friedman, Gonzalez and McGuire, JJ.