LVN Corp. v Khan
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[*1]
LVN Corp. v Khan
2014 NY Slip Op 51529(U)
Decided on October 22, 2014
Supreme Court, Bronx County
Thompson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on October 22, 2014
Supreme Court, Bronx County
LVN Corporation, Plaintiff
against
Farzie Khan et al., Defendant.
382949/2009
Non Party Movant
Bebi Alli
2703 Decatur Avenue
Bronx, New York 10458
Plaintiff's Attorney
Stein, Weiner & Roth
One Old Country Road suite 113
Carle Place, New York 11514
Kenneth L. Thompson, J.
NoOn Calendar of July 30, 2014PAPERS NUMBER
Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed—————————___1___
Answering Affidavit and Exhibits———— ———————————————————————_______
Replying Affidavit and Exhibits——————————————————————————————————-_______
Pleadings — Exhibit——————————————————————————————————————————_______
Memorandum of Law- ______ Stipulation — Referee's Report —Minutes—————————————————————————————________Filed papers——————————————————————————————————————————-_______________
Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:
Non-party, Bebi Alli, (Alli), submitted an Order to Show Cause seeking a stay of the
Judgment of Foreclosure and Sale and to intervene in this foreclosure action as a
necessary/indispensable party. Alli argues that he is the agent of the subject property owner,
Farzie Khan, by operation of a General Power of Attorney dated December 20, 2006, and
appears to be seeking to represent this defendant in this action.
However, "no authority has been presented which would permit a lay person by virtue of
his capacity as attorney-in-fact for his principal to appear on his principal's behalf and act as
legal counsel in a court of law unless admitted to so practice. Under the applicable statutes of this
state, only those persons duly admitted to practice before the courts of this state may act as a
legal representative of another person in a court proceeding or in the further capacity of a
practicing attorney [see Judiciary Law, §§ 478 and 484]. The seriousness with which the
legislature views this requirement is manifest since a violation of the statutory proscription is
punishable as a misdemeanor [Judiciary Law, § 485]. Moreover, the potential problems created
by the use of this device as a means of encouraging the unauthorized practice of law is obvious
[see Code of Professional Responsibility, EC 3—1]. Of course, if petitioner's principal wishes to
proceed pro se, she may do so. However, she cannot use a power of attorney as a device to
license a layman to act as her attorney in a court of record. To sanction this course would
effectively circumvent the stringent licensing requirements of attorneys by conferring upon lay
persons the same right to represent others by the use of powers of attorney." (Estate of
Friedman, 126 Misc 2d 344, 345 [N.Y.Sur., 1984]).
With respect to Alli's status as a tenant in the building which is subject to the foreclosure
herein, as was explained in the decision and order dated September 26, 2014, which denied
Alli's, improperly brought summary judgment motion, there is no requirement that tenants must
be named defendants in a foreclosure action. "[T]he absence of a necessary party [tenant] in a
foreclosure action leaves that party's rights unaffected by the judgment and sale, and the
foreclosure sale may be considered void as to the excluded party (6820 Ridge Realty v Goldman,
263 AD2d at 26; Polish Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d at 406)."
[Board of Mgrs. of Parkchester N. Condominium v Alaska Seaboard Board of Mgrs. of
Parkchester N. Condominium v Alaska Seaboard Partners Ltd. Partnership, 37 AD3d 332, 333
[1st Dept 2007]). The term "necessary party" merely means that if a party's interest in real
property is to be foreclosed upon, that party must be a named defendant.
Accordingly, the Court declines to sign Bebi Alli's meritless order to show because that
was brought by a non-party to this action who has no standing to bring this order to show cause.
The foregoing shall constitute the decision and order of the Court.
Dated: ____October 22, 2014_________________________________________KENNETH L. THOMPSON JR. J.S.C.
Decided on October 22, 2014
Supreme Court, Bronx County
LVN Corporation, Plaintiff
against
Farzie Khan et al., Defendant.
382949/2009
Non Party Movant
Bebi Alli
2703 Decatur Avenue
Bronx, New York 10458
Plaintiff's Attorney
Stein, Weiner & Roth
One Old Country Road suite 113
Carle Place, New York 11514
Kenneth L. Thompson, J.
The following papers numbered 1 to 1 read on this Order to Show Cause
NoOn Calendar of July 30, 2014PAPERS NUMBER
Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed—————————___1___
Answering Affidavit and Exhibits———— ———————————————————————_______
Replying Affidavit and Exhibits——————————————————————————————————-_______
Affidavit_______
Pleadings — Exhibit——————————————————————————————————————————_______
Memorandum of Law- ______ Stipulation — Referee's Report —Minutes—————————————————————————————________Filed papers——————————————————————————————————————————-_______________
Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:
Non-party, Bebi Alli, (Alli), submitted an Order to Show Cause seeking a stay of the
Judgment of Foreclosure and Sale and to intervene in this foreclosure action as a
necessary/indispensable party. Alli argues that he is the agent of the subject property owner,
Farzie Khan, by operation of a General Power of Attorney dated December 20, 2006, and
appears to be seeking to represent this defendant in this action.
However, "no authority has been presented which would permit a lay person by virtue of
his capacity as attorney-in-fact for his principal to appear on his principal's behalf and act as
legal counsel in a court of law unless admitted to so practice. Under the applicable statutes of this
state, only those persons duly admitted to practice before the courts of this state may act as a
legal representative of another person in a court proceeding or in the further capacity of a
practicing attorney [see Judiciary Law, §§ 478 and 484]. The seriousness with which the
legislature views this requirement is manifest since a violation of the statutory proscription is
punishable as a misdemeanor [Judiciary Law, § 485]. Moreover, the potential problems created
by the use of this device as a means of encouraging the unauthorized practice of law is obvious
[see Code of Professional Responsibility, EC 3—1]. Of course, if petitioner's principal wishes to
proceed pro se, she may do so. However, she cannot use a power of attorney as a device to
license a layman to act as her attorney in a court of record. To sanction this course would
effectively circumvent the stringent licensing requirements of attorneys by conferring upon lay
persons the same right to represent others by the use of powers of attorney." (Estate of
Friedman, 126 Misc 2d 344, 345 [N.Y.Sur., 1984]).
With respect to Alli's status as a tenant in the building which is subject to the foreclosure
herein, as was explained in the decision and order dated September 26, 2014, which denied
Alli's, improperly brought summary judgment motion, there is no requirement that tenants must
be named defendants in a foreclosure action. "[T]he absence of a necessary party [tenant] in a
foreclosure action leaves that party's rights unaffected by the judgment and sale, and the
foreclosure sale may be considered void as to the excluded party (6820 Ridge Realty v Goldman,
263 AD2d at 26; Polish Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d at 406)."
[Board of Mgrs. of Parkchester N. Condominium v Alaska Seaboard Board of Mgrs. of
Parkchester N. Condominium v Alaska Seaboard Partners Ltd. Partnership, 37 AD3d 332, 333
[1st Dept 2007]). The term "necessary party" merely means that if a party's interest in real
property is to be foreclosed upon, that party must be a named defendant.
Accordingly, the Court declines to sign Bebi Alli's meritless order to show because that
was brought by a non-party to this action who has no standing to bring this order to show cause.
The foregoing shall constitute the decision and order of the Court.
Dated: ____October 22, 2014_________________________________________KENNETH L. THOMPSON JR. J.S.C.
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