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Party does not have a basis to use CPLR 321(c) as a sword against now unrepresented partyJune 10, 2017

Lion Button Co. v Jachs NY, LLC, 2017 NY Slip Op 50773(U)(App. Term 2d Dept. 2017)

(1) ” Under the terms of the stipulation, defendant agreed to pay plaintiff $1,100 by a date certain in settlement of the action, failing which plaintiff would give defendant written notice of its default, whereupon defendant would have seven days to cure its default. In the event that defendant failed to cure its default, plaintiff would be entitled to enter judgment against defendant for the full amount demanded in the complaint, plus interest, costs and disbursements. Four days before the stipulated payment due date, plaintiff moved to vacate the stipulation of settlement and to restore the matter to the trial calendar, on the ground that defendant, which is a limited liability company, had not been represented by counsel when it had entered into the stipulation of settlement.”

(2) “We do not consider plaintiff’s argument, made for the first time on appeal, that, under CPLR 321 (c), the action should automatically have been stayed following the death of defendant’s attorney, and that the stipulation the parties entered into was therefore a nullity, since the purpose of CPLR 321 (c) is to protect a litigant who has been deprived of counsel through no fault of his own (see Moray v Koven & Krause, Esqs., 15 NY3d 384, 389 [2010]), and not to be used, after the fact, as a sword by a litigant which was not even potentially prejudiced by its adversary’s lack of counsel.

Sometimes, we see arguments made regarding CPLR 321(c) when there is a wholesale change in counsel.  The Court’s viewpoint is that CPLR 321(c) is not to be used as a sword against an unrepresented party.

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