Category: CPLR § 321

Personal Jurisdiction

Matter of Wilson v Brown, 2018 NY Slip Op 04743 [2d Dept 2018]

"An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him [or her], and therefore confers personal jurisdiction over him [or her], unless he [or she] asserts an objection to jurisdiction either by way of motion or in his [or her] answer" (Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984 [internal quotation marks omitted]; see National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 537-538). " By statute, a party may appear in an action by attorney (CPLR 321), and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction'" (National Loan Invs., L.P. v Piscitello, 21 AD3d at 537-538, quoting Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 140). Here, by actively participating in the proceedings through her counsel, the mother waived any claim that the Family Court did not acquire personal jurisdiction over her (see Matter of Tylan C. [Patricia H.], 140 AD3d 1161, 1162; Matter of El-Sheemy v El-Sheemy, 35 AD3d 738, 739; Matter of Borggreen v Borggreen, 13 AD3d 756, 757; Matter of Fallon v Fallon, 4 AD3d 426, 427; Matter of Brozzo v Brozzo, 192 AD2d 878, 880).

The bold is mine.

Consent to Change / Service

Sperry Assoc. Fed. Credit Union v John, 2018 NY Slip Op 02823 [2d Dept. 2018]

CPLR 321(b)(1) provides that an attorney of record may be changed by filing a consent to change attorney signed by the retiring attorney and the party. Notice must be given to adverse parties. In this case, it appears that at the time the defendant's motion for leave to renew and reargue was made, no consent to change attorney had been filed. A technical failure to comply with CPLR 321(b), however, does not render the acts of the new attorney a nullity (see Diamadopolis v Balfour, 152 AD2d 532; Imor v Imor, 119 AD2d 913). In this case, the plaintiff claims no prejudice, and the consent to change attorneys was filed while the motion was still pending (see Elite 29 Realty LLC v Pitt, 39 AD3d 264). Thus, contrary to the plaintiff's contention, the belated compliance with CPLR 321(b) was not a basis to deny the defendant's motion (cf. Dobbins v County of Erie, 58 AD2d 733; Matter of Kitsch Riker Oil Co., 23 AD2d 502).

At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence (see Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776). The plaintiff failed to meet that burden. Where a process server has no independent recollection of events, a process server's logbook may be admitted in evidence as a business record (see Gilmore v Tindel, 210 AD2d 1). Here, however, the logbook was not produced in court or introduced in evidence. Thus, there was no evidence—other than the process server's description of a business record not before the court, which the process server claimed he was unable to locate—to support the claim that service occurred at 7:05 p.m., when the person who allegedly received the papers was present to receive them.

Emphasis is mine.

CPLR 321

CPLR 321(a)

Boente v Peter C. Kurth Off. of Architecture & Planning, P.C., 2014 NY Slip Op 00473 [2nd Dept. 2014]

As the plaintiff correctly contends, the Supreme Court erred in accepting an untimely, pro se answer from the defendant corporation, and in thereby denying that branch of the plaintiff's motion which was for leave to enter a default judgment on the complaint. The proffered answer was a nullity, since a corporation must be represented by an attorney and cannot proceed pro se (see CPLR 321[a]; Pisciotta v Lifestyle Designs, Inc., 62 AD3d 850, 853; Bilello v Genesis Seafood, Inc., 12 AD3d 474; World On Columbus v L.C.K. Rest. Group, 260 AD2d 323, 324).

Emphasis mine

Defaultastic CPLR 5015

CPLR R. 5015

CPLR R. 3211(e)

CPLR § 321 Attorneys
(c) Death, removal or disability of attorney

Alterbaum v Shubert Org., Inc., 2011 NY Slip Op 00339 (App. Div., 2nd 2011)

To vacate an order entered upon their default in opposing the plaintiff's motion for leave to enter a default judgment, the defendants were required to demonstrate, inter alia, a reasonable excuse for their default in appearing or answering the complaint and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Abdul v Hirschfield, 71 AD3d 707; Bekker v Fleischman, 35 AD3d 334; Epps v LaSalle Bus, 271 AD2d 400). The defendants failed to proffer any explanation for their failure to oppose either of the plaintiff's two motions for leave to enter judgment upon their default, one in October 2009, and the second in December 2009, both of which were served upon them (see Epps v LaSalle Bus, 271 AD2d 400). The defendants' claim, which was improperly presented for the first time in a reply affidavit, that their executive assistant did not recall receiving the two motions, did not overcome the presumption of proper mailing created by the affidavits of service (see Kihl v Pfeffer, 94 NY2d 118, 122; Engel v Lichterman, 62 NY2d 943; Mei Yun Li v Qing He Xu, 38 AD3d 731; Terlizzese v Robinson's Custom Serv., Inc., 25 AD3d 547, 548). Furthermore, the defendants did not offer a reasonable explanation for their inaction between December 2009 and May 2010 when they moved to vacate the order dated March 4, 2010. Under the circumstances, the defendants' pattern of willful neglect and default should not have been excused (see Bekker v Fleischman, 35 AD3d 334; Edwards v Feliz, 28 AD3d 512, 513; Gainey v Anorzej, 25 AD3d 650, 651; Roussodimou v Zafiriadis, 238 AD2d 568, 568). In view of the lack of a reasonable excuse, it is unnecessary to consider whether the defendants sufficiently [*2]demonstrated the existence of a potentially meritorious defense (see Abdul v Hirschfield, 71 AD3d at 709; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144; American Shoring, Inc. v D.C.A. Constr., Ltd., 15 AD3d 431).

Contrary to the defendants' contention, the plaintiff's affidavit set forth enough facts to enable the Supreme Court to determine that the plaintiff alleged a viable cause of action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Neuman v Zurich N. Am., 36 AD3d 601, 602).

Deutsche Bank Natl. Trust Co. v Rudman, 2011 NY Slip Op 00346 (App. Div., 2nd 2011) 

In this action to foreclose a mortgage, the appellants did not answer the complaint until more than eight weeks after their time to do so expired and, even after their untimely answer was immediately rejected, they took no action to remedy their default until many months later. A defendant who seeks to extend the time to appear or to compel acceptance of an untimely answer must provide a reasonable excuse for the default and show a potentially meritorious defense (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889). Here, the appellants failed to offer any excuse for their failure to timely answer the complaint (id.; see Emigrant Mtge. Co., Inc. v Teel, 74 AD3d 1275, 1276). Since the appellants failed to offer a reasonable excuse, it is unnecessary to consider whether they demonstrated the existence of a potentially meritorious defense (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d at 889).

Accordingly, the Supreme Court properly denied the appellants' cross motion, inter alia, to vacate their default in answering and extend their time to answer, and properly granted the plaintiff's motion for leave to enter a judgment of foreclosure and sale against the appellants. 

Stamulis v Mordred Realty Corp., 2011 NY Slip Op 00374 (App. Div., 2nd 2011)

In order to prevail on a motion to vacate a default judgment, a defendant is required to demonstrate both a reasonable excuse for its default and a potentially meritorious defense (see Fekete v Camp Skwere, 16 AD3d 544, 545; Amato v Fast Repair, Inc., 15 AD3d 429, 430; Costanza v Gold, 12 AD3d 551, 552; Czarnik v Urban, 10 AD3d 627). Here, the confusion surrounding the withdrawal of defense counsel from the case and the plaintiff's apparent failure to comply with CPLR 321(c) provided a sufficient excuse for the defaults. In addition, the appellants established the existence of potentially meritorious defenses based on a close reading of the subject lease. Therefore, the Supreme Court should have denied the plaintiff's motion and granted the appellants' cross motion. 

 Matter of Brodsky v New York City Campaign Fin. Bd., 2011 NY Slip Op 00256 (App. Div., 1st 2011)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 16, 2009, which, to the extent appealed from, granted respondent's motion to compel petitioner Meryl Brodsky to completely and accurately respond to an information subpoena and questionnaire (CPLR 5224), and denied said petitioner's cross motion to quash the subpoena and vacate the underlying judgment, same court and Justice, entered August 31, 2009, unanimously affirmed, without costs.

Petitioner waived her objection to Supreme Court's jurisdiction over her by failing to raise it in her opposition to respondent's motion (see CPLR 3211[e]; Matter of United Servs. Auto. Assn. v Kungel, 72 AD3d 517, 518 [2010]).

Petitioner has not been prejudiced by any technical defects in the judgment in connection with which the information subpoena was served.

 

CPLR § 321(c); CPLR § 5601(a); Court of Appeals

I've noticed that the less I post here, the more I screw myself.  This place is the only way I have to keep track of cases, and, while I keep on reading them, I'm not posting too often.  So when I spot an issue and need a case, I have to go searching through the SlipOps, which is a huge pain in the ass.

So, for my own sake, I will probably be posting more often.

For now, here are two cases from the Court of Appeals.

CPLR § 321 Attorneys
(c) Death, removal or disability of attorney

Moray v Koven & Krause, 2010 NY Slip Op 07573 (Ct. App. 2010)

This lawsuit was automatically stayed by operation of CPLR 321 (c) on January 24, 2008, the date when plaintiff's attorney was suspended from the practice of law. Defendant never acted to lift the stay by serving a notice upon plaintiff to appoint new counsel within 30 days. Thus, Supreme Court's order dismissing the action must be vacated (see e.g. Galletta v Siu-Mei Yip, 271 AD2d 486, 486 [2d Dept 2000] ["Since the judgment entered upon the defendants' default in appearing at trial was obtained without the plaintiff's compliance with CPLR 321 (c), it must be vacated"];McGregor v McGregor, 212 AD2d 955, 956 [3d Dept 1995] ["The record reveals no compliance with the leave or notice requirements of CPLR 321 (c). The appropriate remedy for a violation of CPLR 321 (c) is vacatur of the judgment"]).

Defendant resists this outcome on two grounds. First, he points out that CPLR 321 (c) permits further proceedings "by leave of court." Defendant contends that Supreme Court exercised this "express statutory authority to hear and grant defendant's motion to dismiss after [Goodman] was suspended from the practice of law." The drafter's notes on CPLR 321 (c), however, state that the words "without leave of the court" were "designed to allow the court to vary the [30-day] rule in cases where the stay of proceedings would produce undue hardship to the opposing party, as where the time to take an appeal or other action would run or where a provisional remedy is sought and speed is essential" (Fourth Preliminary Report, Advisory Committee on Practice and Procedure [1960 NY Legis Doc No. 20, at 191]). No remotely comparable situation existed at the time Supreme Court dismissed this action. Moreover, Supreme Court did not mention CPLR 321 (c), much less articulate a basis for exercising its discretion to relax the 30-day notice requirement.

Second, defendant argues that plaintiff is foreclosed from bringing up CPLR 321 (c) for the first time on appeal, as the Appellate Division concluded. While we do not as a general rule resolve cases on grounds not raised in the trial court, the context here is unusual. We are dealing with a statute intended to protect litigants faced with the unexpected loss of legal representation. And there is no indication in this record that plaintiff sought to raise CPLR 321 (c) only after having conducted his lawsuit pro se for some period of time after his attorney became disabled (cf. Telmark, Inc. v Mills, 199 AD2d 579, 580-581 [3d Dept 1993]). As a general rule, unrepresented litigants should not be penalized for failing to alert a trial court to the existence of an automatic stay created for the very purpose of safeguarding them against adverse consequences while they are unrepresented. And as the Practice Commentaries point out, all it takes to end the automatic stay is service of a 30-day notice on the affected party.

CPLR § 5601(a)

Cadichon v Facelle, 2010 NY Slip Op 07577 (Ct. App. 2010)

The motion, insofar as it seeks leave to appeal from that portion of the Appellate [*2]Division order that affirmed the August 26, 2008 Supreme Court order, treated as a motion for reconsideration of so much of this Court's July 1, 2010 order as dismissed plaintiffs' appeal as of right from that portion of the Appellate Division order, should be granted, and, upon reconsideration, jurisdiction of so much of the appeal should be retained. The motion, insofar as it seeks leave to appeal from the above-recited part of the Appellate Division order should be dismissed as unnecessary. The motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order should be dismissed upon the ground that it does not finally determine the action within the meaning of the Constitution. The motion, insofar as it seeks leave to appeal from the amended judgment of Supreme Court pursuant to CPLR 5602(a)(1)(ii), should be dismissed upon the ground that the portion of the Appellate Division order that affirmed the August 26, 2008 Supreme Court order is a final appealable paper from which an appeal was properly taken (see CPLR 5611). The appeal from the amended judgment should be dismissed without costs, by the Court, on its own motion, upon the ground that the portion of the Appellate Division order that affirmed the August 26, 2008 Supreme Court order is a final appealable paper from which an appeal was properly taken (see CPLR 5611).

In considering the finality limitation on its jurisdiction, this Court has consistently treated the automatic dismissal of an action pursuant to CPLR 3404, or pursuant to other statutes or court rules, as a final determination and it has treated any subsequent order denying a motion to vacate the dismissal as a nonfinal determination (see, e.g., Paglia v Agrawal, lv dismissed 69 NY2d 946 [1987]). Accordingly, reading Supreme Court's order pursuant to CPLR 3216 in this case as providing that the complaint would be dismissed automatically upon plaintiffs' failure to file a note of issue by the date specified in the order, the Court dismissed for nonfinality the part of the appeal taken from the order affirming the denial of the motion to vacate (15 NY3d 767). Upon reconsideration, it is recognized that Supreme Court's order is ambiguous as to whether it mandated a dismissal without further court order. Where, as here, it is not clear that the action was automatically dismissed by operation of statute, rule or court order, the order denying the motion to vacate shall be deemed the final appealable paper for purposes of this Court's jurisdiction. As the Appellate Division order denying the motion to vacate had a two-justice dissent on a question of law, an appeal as of right pursuant to CPLR 5601(a) properly lie

 

 

CPLR R. 3211 Roundup: CPLR R. 3211(a)(1,3,5,7); CPLR R. 3211(e) and CPLR § 205 with CPLR § 321

In Pari Delicto 

CPLR R. 3211

(a)(1) defense is founded upon documentary evidence

(a)(3) the party asserting the cause of action has not legal capacity to sue

(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

(a)(7)  pleading fails to state a cause of action

CPLR § 205 Termination of action

(a) New action by plaintiff.

CPLR § 321 Attorneys
(a) Appearance in person or by attorney

Symbol Tech., Inc. v Deloitte & Touche, LLP, 2009 NY Slip Op 07826 (App. Div., 2nd, 2009)

To obtain a dismissal pursuant to CPLR 3211(a)(1), the defendant
must establish that the documentary evidence which forms the basis of
the defense be such that it resolves all factual issues as a matter of
law and conclusively disposes of the plaintiff's claim (see Leon v Martinez, 84 NY2d 83; see also Sheridan v Town of Orangetown, 21 AD3d 365).

CPLR 3211(a)(7) permits the court to dismiss a complaint that
fails to state a cause of action. The complaint must be liberally
construed and the plaintiff given the benefit of every favorable
inference (see Leon v Martinez, 84 NY2d 83; Aberbach v Biomedical Tissue Serv., Ltd., 48 AD3d 716; Mitchell v TAM Equities, Inc., 27
AD3d 703). The court must also accept as true all of the facts alleged
in the complaint and any factual submissions made in opposition to the
motion (see 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144; Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409; Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11
AD3d 493). If the court can determine that the plaintiff is entitled to
relief on any view of the facts stated, its inquiry is complete and the
complaint must be declared legally sufficient (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318; see also Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409; Stucklen v Kabro Assoc., 18
AD3d 461). While factual allegations contained in the complaint are
deemed true, bare legal conclusions and facts flatly contradicted on
the record are not entitled to a presumption of truth (see Lutz v Caracappa, 35 AD3d 673, 674l; Matter of Loukoumi, Inc., 285 AD2d 595).

Finally, CPLR 3211(a)(5) permits the defendant to seek and
obtain a dismissal of one or more causes of action asserted against it
on the ground that the cause of action is barred by the statute of
limitations.

***

The doctrine of in pari delicto is an equitable defense based on
agency principles which bars a plaintiff from recovering where the
plaintiff is itself at fault (see Ross v Bolton, 904 F2d 819, 824-825; Matter of Food Management Group v Rattet, 380 BR 677, 693-694; Albright v Shapiro, 214 AD2d 496; Bullmore v Ernst & Young Cayman Is., 20
Misc 3d 667, 670). Moreover, the misconduct of managers acting within
the scope of their employment will normally be imputed to the
corporation (see Wight v Bank America Corp., 219 F3d 79, 86; Center v Hampton Affiliates, 66 NY2d 782, 784; Christopher S. v Douglaston Club, 275
AD2d 768, 769). The underlying concept is that the actions of an agent
can be imputed to a corporation when its agent acts within the scope of
his or her employment (see Center v Hampton Affiliates, 66 NY2d at 784).

Under New York law, the doctrine of in pari delicto is subject to the "adverse interest" exception [FN2] (see Center v Hampton Affiliates, 66
NY2d 782). In this case, Symbol's amended complaint is sufficient to
trigger the adverse interest exception to the in pari delicto doctrine.

The "adverse interest" exception is a method by which a
plaintiff corporation can demonstrate that its agent's actions should
not be imputed to it. The corporation must show that the agent's fraud
was entirely self-interested and that the corporation did not benefit
in any way (see 546-552 West 146th St., LLC v Arfa, 54 AD3d 543; Capital Wireless Corp. v Deloitte & Touche, 216
AD2d 663, 666). If the agent was acting solely for his or her own
benefit and to the detriment of the corporation, it cannot be said that
the agent was acting in the scope of his or her employment (see Center v Hampton Affilliates, 66 [*4]NY2d at 784).

This exception has been defined very narrowly in New York (see 546-552 West 146th St., LLC v Arfa, 54
AD3d 543). Under this narrow exception, management misconduct will not
be imputed to the corporation if the officer acted entirely in his own
interest and adversely to the interest of the corporation (see Center v Hampton Affiliates, 66
NY2d at 785). "The theory is that where an agent, though ostensibly
acting in the business of the principal, is really committing a fraud
for his own benefit, he is acting outside of the scope of his agency,
and it would therefore be most unjust to charge the principal with
knowledge of it" (Wight v Bank America Corp., 219 F3d 79, 87).
The adverse interest exception applies only when the agent has "totally
abandoned" the principal's interests and is acting entirely for his own
or another's purposes (Center v Hampton Affiliates, 66 NY2d at 785).

Credigy Receivables, Inc. v Agiwal, 2009 NY Slip Op 07790 (App. Div., 2nd, 2009)

The appeal from the intermediate order dated February 7, 2008, must
be dismissed because the right of direct appeal therefrom terminated
with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from that order are brought up for [*2]review and have been considered on appeal from the judgment (see CPLR 5501[a][1]).

The defendant's motion to dismiss the complaint based on lack of
personal jurisdiction was properly denied on the ground that the
objection of improper service of the summons and complaint was waived
by the defendant's failure to move to dismiss on that ground within 60
days of service of the answer (see CPLR 3211[e]).

In its motion for summary judgment, the plaintiff established
its entitlement to judgment as a matter of law against the defendant in
the principal sum of $55,682.32, and the defendant failed to raise a
triable issue of fact in response thereto (see Alvarez v Prospect Hosp., 68 NY2d 320).

Moran Enters., Inc. v Hurst, 2009 NY Slip Op 07807 (App. Div., 2nd, 2009)

The Supreme Court erred in dismissing the complaint pursuant to CPLR
3211(a)(5). The principle of res judicata bars relitigation of claims
where a judgment on the merits exists from a prior action between the
same parties involving the same subject matter (see Matter of Hunter,
4 NY3d 260, 269). Dismissal of the prior action insofar as asserted by
MEI was upheld by this Court on the ground that MEI failed to appear by
an attorney as required by CPLR 321(a) (see Moran v Hurst, 32
AD3d 909). Such was not a

Continue reading “CPLR R. 3211 Roundup: CPLR R. 3211(a)(1,3,5,7); CPLR R. 3211(e) and CPLR § 205 with CPLR § 321”

CPLR § 321 Attorneys

CPLR § 321 Attorneys
(b) Change or withdrawal of attorney

Kaufman v Kaufman, 2009 NY Slip Op 05272 (App. Div., 1st, 2009)

In this matrimonial action, the contractual provision in the
retainer agreement that purports to authorize counsel to withdraw upon
nonpayment of fees does not vitiate the procedural requirements of CPLR
321(b), nor does it deprive the court of its traditional discretion in
regulating the legal profession by overseeing the charging of fees for
legal services (see e.g. Solow Mgt. Corp. v Tanger, 19 AD3d 225
[2005]). The motion court properly considered counsel's motion to
withdraw against the requirement that to be "entitled to terminate the
relationship with a client, an attorney must make a showing of good or
sufficient cause and reasonable notice" (George v George, 217 AD2d 913 [1995]).

There is no basis on this record to conclude that the court
engaged in an improvident exercise of its discretion in denying
counsel's motion (see e.g. Torres v Torres, 169 AD2d 829 [1991]). The mere fact that a client fails to pay an attorney for services rendered does not, [*2]without more, entitle the attorney to withdraw (Cashdan v Cashdan, 243 AD2d 598 [1997]; George v George, 217 AD2d 913, supra).

The bold is mine.

CPLR § 3012(b); CPLR § 321(b)&(c)

CPLR § 3012 Service of pleadings and demand for complaint
(b) Service of complaint where summons served without complaint

CPLR § 321 Attorneys
(c) Death, removal or disability of attorney
If an attorney dies, becomes physically or mentally incapacitated, or
is removed, suspended or otherwise becomes disabled at any time before
judgment, no further proceeding shall be taken in the action against
the party for whom he appeared, without leave of the court, until
thirty days after notice to appoint another attorney has been served
upon that party either personally or in such manner as the court
directs.

Moray v Koven & Krause, Esqs., 2009 NY Slip Op 03877 (App. Div., 2nd, 2009)

To avoid dismissal for failure to serve a complaint after a
demand therefor has been served pursuant to CPLR 3012(b), a plaintiff
must demonstrate both a reasonable excuse for the delay in serving the
complaint and the existence of a meritorious cause of action (see Leibowitz v Glickman, 50 AD3d 643; Tutora v Schirripa, 1 AD3d 349, 350; Balgley v Cammarata, 299
AD2d 432). Here, the plaintiff failed to show the existence of a
meritorious cause of action. Accordingly, the Supreme Court did not
improvidently exercise its discretion in granting the defendant's
motion to dismiss the action.

The plaintiff's contention that the action was stayed pursuant
to CPLR 321(c) is raised for the first time on appeal and, thus, is not
properly before this Court (see Telmark, Inc. v Mills, 199 AD2d 579, 580; see also KPSD Mineola, Inc. v Jahn, 57 AD3d 853; Triantafillopoulos v Sala Corp., 39 AD3d 740).

Splinters, Inc. v Greenfield, 2009 NY Slip Op 04411 (App. Div., 2nd, 2009)

The Supreme Court improvidently exercised its discretion in denying the
branch of the defendants' motion which was to dismiss the 2005 action.
In order "[t]o avoid dismissal for failure to timely serve a complaint
after a demand for the complaint has been made pursuant to CPLR
3012(b), a plaintiff must demonstrate both a reasonable excuse for the
delay in serving the complaint and a meritorious cause [*3]of action" (Balgley v Cammarate, 299 AD2d 432; see Pristavec v Galligan, 32 AD3d 834; Maldonado v Suffolk County, 23 AD3d 353; Giordano v Vanchieri & Perrier, 16 AD3d 621; Tutora v Schirripa,
1 AD3d 349). The plaintiff offered no excuse for the failure to serve a
complaint during the approximately seven-month period from the demand
in February 2006 to October 2006, when it purportedly intended to serve
a complaint but failed to do so allegedly as a result of law-office
failure. Further, until an attorney of record withdraws or is changed
or discharged in the manner prescribed by CPLR 321, his or her
authority as attorney of record for his or her client continues, as to
adverse parties, unabated (see Moustakas v Bouloukos, 112 AD2d
981, 983). Thus, even if service of the complaint in October 2006 would
have been timely, the service would have been ineffective, since the
plaintiff's second attorney had not yet been substituted as counsel and
therefore had no authority to act for the plaintiff in that action (see
CPLR 321[b]). The 2005 action should therefore have been dismissed for
failure to respond properly and timely to the defendants' demand for a
complaint.

The bold is mine.