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Article 78, representation question

NYC Housing Court Practice/Procedures

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Article 78, representation question

Postby Gregg » Sat Jan 24, 2009 6:02 pm

Can a building-wide complaint to the DHCR, now appealed as an Article -78, be represented by a non attorney? Is there any legal prohibition to a tenant representative who is not an attorney appearing for the tenants?

Thanks!
Gregg
 
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Postby TenantNet » Sat Jan 24, 2009 6:21 pm

A tenant cannot represent an association of tenants in court although it is possible below when appearing before DHCR.

CPLR section 321 states:
"...A corporation or voluntary association shall appear by attorney..."

Of course you may represent yourself as a tenant affected by the appealed order. (I'm assuming the LL has done the appealing here). You would need to make a motion to intervene, either by motion or by OSC.

Generally DHCR does not object to tenant intervention and they should make it clear they represent the agency's interests, not your interests. If the LL objects to intervention, there are ways to deal with that.

You can also get all or a subset of tenants to appear. In such case all tenants in the subset would become parties and all would need to sign papers as they are submitted.

The point is that you may not need all tenants affected by the order to get involved at the court level. In many DHCR orders, the order itself will stand or fall whether or not one, several or all tenants become parties. You individually can represent yourself in a MCI appeal for example. The order will stand or fall for all tenants even if it's just you.

But in some cases it's good to get many tenants appearing at the court for PR purposes.
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Postby TenantNet » Sat Jan 24, 2009 7:39 pm

To follow-up, below is part of a motion filed by a landlord's attorney objecting to a tenant trying to represent a tenant association in an Article 78. Rather than fight it, the tenant represented himself ... and the tenants won the case.

THE ASSOCIATION'S MOTION IS NOT PROPERLY BEFORE THIS COURT

12. The Association purports to move and proposes to appear in this proceeding pro se, represented by John Doe, a non- attorney. However, CPLR §321 specifically provides in pertinent part:

"[A] corporation or voluntary association shall appear by attorney...." (emphasis supplied)

13. A pro se appearance by an officer of a corporation [or voluntary association] is a nullity, justifying the entry of a default judgment. Evans v. Conley, 124 A.D. 2d 981 (4th Dept.), appeal dismissed, 69 N.Y. 2d 822. An individual defendant who is not an attorney is barred from representing corporate defendants in the same action. Lefkowitz v. Therapeutic Hypnosis, Inc., 52 A.D. 2d 1017, appeal denied, 42 N.Y. 2d 807.

14. Similarly, a voluntary association must appear by counsel or be defaulted. Anti-Defamation League, 72 Misc.2d 847 (Sup. Ct., N.Y. Co.) ("though the defendant executive director attended and monitored the trial, no appearance was or could be made on behalf of the defendant league").

15. Upon information and belief the Association is a voluntary association, consisting of one or more tenants who reside in the subject building. It should be noted that Doe fails to state, either in his affidavit or the proposed pro se answer, the organizational status of the Association. Nor does he annex proof of authority from any tenants authorizing him as "agent" to represent them in this proceeding, a list of, or even the number of, tenants who he alleges to be members of the Association. In any event, even beyond the issue of Doe's clear lack of capacity to represent the Association as a non-attorney, the Court has insufficient information upon which to determine that the Association is a jural entity at all. It certainly appears to be no more than a "voluntary association." Therefore, the Court must deny intervention to the Association, as a matter of law. Also, even if it is a jural entity, only individually named tenants were parties to the DHCR proceeding. Neither the Association nor any other "association" was a party to the DHCR proceeding and therefore are not entitled to intervene in this proceeding, as a matter of law.

16. Thus, absent proof to the contrary, it certainly appears that the Association is a voluntary association of one or more persons. Accordingly, Doe, a non-attorney, may not represent the Association in any manner in this proceeding and the Association may not appear without an attorney.

17. In fact, Doe may be guilty of a criminal offense by practicing law without a license. Judiciary Law §478 provides in pertinent part:

"It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself in a court of record in this state or in any court in the city of New York, ....

18. The purpose of Judiciary Law 478 is to protect citizens against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work. Spivak v. Sachs, 16 N.Y. 2d 163.

19. Accordingly, the participation in litigation by a person unauthorized to practice law will result in a mistrial, regardless of demonstrable prejudice; all proceedings in the matter are void. Colton v. Oshrin, 155 Misc. 383 (Sup. Ct., N.Y. Co.).

20. Doe may not make motions, submit pleadings or otherwise appear on behalf of the Association. Therefore, the court must reject the Association's motion as a nullity and refuse to consider it, as a matter of law.

21. Moreover, petitioner will be prejudiced if Doe, a non-lawyer, is permitted to represent the Association. Besides the obvious disadvantage of Doe not being bound to conduct himself ethically, as an officer of the court (the Disciplinary Rules apply only to attorneys), the results of this proceeding will be open to collateral attack by tenants purportedly represented by him, who claim that the proceeding should be reopened because they were not adequately represented by Doe and/or because Doe was not authorized to represent them. (See Colton, supra.)

22. In essence, the tenants would have "two bites at the apple". If they lose in this proceeding, represented by non-attorney Doe, they can get an automatic "re-trial", causing delay and causing petitioner to pay its counsel to litigate two proceedings. The Court may not allow Doe to argue the Association's motion, Answer the petition or be heard otherwise on its behalf, especially at Petitioner's risk and expense. He may not be permitted to practice law without a license.
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Postby Gregg » Sat Jan 24, 2009 9:25 pm

Thanks for the info. I suppose I should have made it clearer, it was the tenants asociation who filed the Article 78, not the landlord. So, we are facing the DHCR in Brooklyn St Supreme Court.

Seems from what you've posted that if I simply represent myself, and win, then the result will be the same.

I'm confident that there are grounds for the Judge to rule that there is merit to the case, and to remand it back to the DHCR for reconsideration, on grounds of both harassment and decrease in services.

Thanks for your reply!
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Postby TenantNet » Sat Jan 24, 2009 9:56 pm

If your TA filed the A78 and you listed yourself as the tenant-representative, then the DHCR (and LL if they intervene) can raise the issues of improper representation.

Don't be so confident about Supreme Court judges, especially those from Brooklyn, where some of the most notorious LL-biased judges are.

As you filed the A78, if the court, DCHR or the LL make a fuss about the representation, you would probably be allowed to amend the petition so just yourself is the petitioner.

But don't assume anything. Check that out. At least get a legal opinion, and find out what is the deadline for amending the petition without getting permission. At a certain point the DHCR or LL might object. And I don't know if the court can dismiss it on it's own motion (I suspect so), so even if DHCR or the LL don't raise it, the judge might. Depends on how lazy they are.

Another option is to get a lawyer to sign on as counsel, but use the work you've already done on the petition, assuming you know what you are doing. Some non-attorney tenants do. Or maybe you do the petition and the lawyer does the Memo of Law. Some lawyers will do this if your work is up to par.

Since you filed the A78, DHCR will notify the LL. The LL can then seek your permission to intervene by stip, or make a motion or OSC to intervene. If they do that, then they have to include their proposed pleadings. In most cases the court will allow intervention, so it makes no sense to object.

Once that's all sorted out, all parties will be able to set up a submission schedule of papers. Tenants with lawyers can generally get more time and/or better terms.
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Postby Gregg » Sun Jan 25, 2009 11:51 am

Thanks for the tip. The DHCR has already raised the objection, in their response, which I just recently received. The case comes up this week, so there is little time to file anything.

I will discuss it with the Judge (Michael Ambrosio), and the DHCR attorney, and go from there.

If you have any experience with this Judge, let me know, if you can.

Thanks!
Gregg
 
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Postby Gregg » Sun Jan 25, 2009 11:54 am

Also, do you have the number of that case you cited, where the tenant represented himself and won, and the results were applied to the rest of the tenants in the original complaint?

Thanks!
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Postby TenantNet » Sun Jan 25, 2009 12:00 pm

You got to make a decision. People usually don't get a chance to "discuss" things with a judge. You got a choice: get a lawyer or each tenant who is a party would represent themselves. In the latter case, you can still do all the work and let the tenants just sign on.

What you're challenging is the DHCR order, not how many tenants it affects (unless that's an issue in the case). So a MCI order will be affirmed or overturned in the proceeding, and it will affect all tenants no matter how many file the appeal.

OTOH, a building-wide rent reduction order will affect all tenants who were listed as parties in the original DHCR complaint. The order will affect all who signed on no matter how many are parties to the appeal.
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Postby Gregg » Sun Jan 25, 2009 12:03 pm

Sorry, one more thing. Is there typically an opportunity to come to a settlement in these situations?

Can the DHCR attorney sign a stip? Or are they simply obligated to send it back to the Agency with a recommendation?

Do the Judges promote this kind of "settlement" discussion at this level, to lessen the number of cases on the docket?

I just wonder how much negotiation flexibility I may have.

Again, thanks!
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Postby TenantNet » Sun Jan 25, 2009 12:39 pm

There is always room for negotiation and judges do prefer this. Many decisions go back to DHCR for reconsideration, but be absolutely careful on the language in the stip. Some tips direct the agency to do certain things, look at only part of the contested decision and so on.

Yes the DHCR attorney can do this, although in some cases they may want to check with their supervisors. Be careful there as the higher you go with DHCR, the more anti-tenant and corrupt they are. The Democrats are no different than the Pataki people.

Be careful of the judge and more importantly, the court attorney. Some are good, but others I've seen make side deals with landlords.
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Postby Gregg » Sun Jan 25, 2009 12:45 pm

Invaluable advice. Thanks so much!

I'll post the results on here, after I go to Court this week.



Gregg
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