Himelein v. Frank

¶1— Order unanimously reversed on the law without costs, motion to dismiss denied, motion for default judgment granted and Clerk of Supreme Court directed to enter judgment accordingly. Memorandum: Defendant never appeared in this action brought under CPLR article 13A. Plaintiffs claim was for a sum certain and application for a default judgment could have *965been made to the Clerk (see, CPLR 3215 [a]). In the circumstances presented, the court had no authority to appoint counsel sua sponte or to entertain a motion to dismiss the complaint. Upon plaintiffs compliance with CPLR 3215 (e) the Clerk shall enter judgment. (Appeal from order of Supreme Court, Cattaraugus County, Horey, J. — forfeiture.) Present— Dillon, P. J., Green, Pine, Balio and Davis, JJ. [See, 141 Misc 2d 416.]