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!
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by Gregg » Sat Jan 24, 2009 6:02 pm
by TenantNet » Sat Jan 24, 2009 6:21 pm
by TenantNet » Sat Jan 24, 2009 7:39 pm
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.
by Gregg » Sat Jan 24, 2009 9:25 pm
by TenantNet » Sat Jan 24, 2009 9:56 pm
by Gregg » Sun Jan 25, 2009 11:51 am
by TenantNet » Sun Jan 25, 2009 12:00 pm
by Gregg » Sun Jan 25, 2009 12:03 pm
by TenantNet » Sun Jan 25, 2009 12:39 pm
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