Opinion
2015–2785 K C
04-06-2018
CARROLL STREET PROPERTIES, Appellant, v. Onelia VELEZ, Respondent, Rogelio Astudillo, Tenant.
Daniel Paul Foster, Esq., for appellant. The Legal Aid Society (Alexandra Heinegg, Aurore C. DeCarlo and Seymour James of counsel), for respondent.
Daniel Paul Foster, Esq., for appellant.
The Legal Aid Society (Alexandra Heinegg, Aurore C. DeCarlo and Seymour James of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ.
ORDERED that the order is affirmed, without costs.
This holdover summary proceeding was purportedly commenced by landlord's managing agent on behalf of landlord. Tenant Onelia Velez moved to dismiss so much of the petition as was against her, on the ground, among others, that the notice of petition and petition were signed and filed on behalf of landlord by the managing agent, who is not an attorney (see CPLR 321 [a] ), and on the further ground that landlord, a partnership, must be represented by an attorney (see id. ; Ernest & Maryanna Jeremias Family Partnership, L.P. v. Sadykov , 48 Misc 3d 8 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ) (Jeremias ). Landlord, by a nonattorney general partner, purported to cross-move to, among other things, allow him to appear on behalf of landlord, asserting that the other general partner had assigned his interest in the cause of action to him (see e.g. Kinlay v. Henley , 57 AD3d 219, 219 [2008] ; Traktman v. City of New York , 182 AD2d 814 [1992] ; Medical Facilities v. Pryke , 172 AD2d 338 [1991] ; cf. Ficalora v. Town Bd. Govt. of E. Hampton , 276 AD2d 666, 666 [2000] ). The Civil Court dismissed the petition on the authority of Jeremias . Landlord, now represented by counsel, appeals, and we affirm.
With exceptions not applicable here (see e.g. CCA 110 [l]; 1809 [2]; 1809–A [d]; see generally UJCA 501 ), it is "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 or herself in a court of record in this state" ( Judiciary Law § 478 ). As this proceeding was commenced on behalf of landlord by a person who is not an attorney, the petition should have been dismissed on that basis (see Whitehead v. Town House Equities, Ltd. , 8 AD3d 369 [2004] ; Gilman v. Kipp , 136 Misc 2d 860, 862 [Syracuse City Ct 1987] ; see also Matter of Ontario Hgts. Homeowners Assn. v. Town of Oswego Planning Bd. , 77 AD3d 1465 [2010] ). This defect was not curable (see Salt Aire Trading LLC v. Sidley Austin Brown & Wood, LLP , 93 AD3d 452 [2012] ; see also Boente v. Peter C. Kurth Off. of Architecture & Planning, P.C. , 113 AD3d 803, 804 [2014] ).
We note that, while here the agent, in the caption and the body of the petition, purported to commence the proceeding on behalf of the partnership, the agent could similarly not have commenced a proceeding in her own name as agent for the partnership (see RPAPL 721 ; Key Bank of NY v. Becker , 88 NY2d 899, 900 [1996] ; Elias Props. Mgt., Inc. v. One Half Fashion Corp. , 57 Misc 3d 138[A], 2017 NY Slip Op 51307[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Fallarino v. Fallarino , 56 Misc 3d 67, 69 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ), a defect which cannot be "cured by captioning the proceeding in the name of a proper party in interest" ( Ferro v. Lawrence , 195 Misc 2d 529, 530 [App Term, 2d Dept, 9th & 10th Jud Dists 2002] ).
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.