Bridan Corp. v. Rabina (234 A.D.2d 503, 1996)

—In an action to foreclose a mortgage, the defendants Maidad Rabina a/k/a Mickey Rabina and 82 Main Street Corp. appeal, as limited by their briefs, from so much of an order of the Supreme Court, Putnam County (Hickman, J.), dated November 6, 1995, as denied their motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint.

Ordered that the matter is remitted to the Supreme Court, Putnam County to hear and report on the cross motion of the nonparty counsel, Daniel Rhoades, which was, in effect, for a determination as to the proper legal representation of the defendant 82 Main Street Corp., and the appeal is held in abeyance in the interim. The Supreme Court, Putnam County, is to file its report with all convenient speed.

In opposition to the motion of the defendants Maidad Rabina a/k/a Mickey Rabina and 82 Main Street Corp. (hereinafter the movants) to dismiss the complaint, the Supreme Court received an affirmation by Daniel Rhoades, an attorney, alleging that the movants’ purported attorney, John A. Porco, P. C., had made an unauthorized appearance on behalf of 82 Main Street Corp. Accordingly, Daniel Rhoades cross-moved to strike this unauthorized appearance. The Supreme Court denied the movants’ motion to dismiss and granted the cross motion to the extent of scheduling a hearing as to the proper representation of 82 Main Street Corp. Before that hearing could be held, this appeal was taken, and the confusion as to the proper representation of 82 Main Street Corp. continues. This Court has received briefs from Daniel Rhoades and John A. Porco, P. C. both claiming to represent the interests of 82 Main Street Corp. and each taking opposite positions as to the result which should occur. Under these circumstances, it is impossible for this Court to make a determination which will affect the rights of 82 Main Street Corp., as well as those of the other parties. The Supreme Court is accordingly directed to conduct its hearing forthwith as to the proper legal representation of 82 Main Street Corp. Bracken, J. P., Miller, Joy and Krausman, JJ., concur.