| Salt Aire Trading LLC v Sidley Austin Brown & Wood, LLP |
| 2012 NY Slip Op 01735 [93 AD3d 452] |
| March 8, 2012 |
| Appellate Division, First Department |
| Salt Aire Trading LLC et al., Appellants, v Sidley AustinBrown & Wood, LLP, et al., Defendants, and Katten Muchin Rosenman LLP,Respondent. |
—[*1] Ellenoff Grossman & Schole LLP, New York (Ted Poretz of counsel), forrespondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered April 8,2011, which granted the motion of defendant Katten Muchin Rosenman LLP for summaryjudgment dismissing the complaint as to it with prejudice, unanimously modified, on the law, togrant the motion for summary judgment without prejudice as to the first and second causes ofaction asserted by plaintiffs other than Salt Aire Investment Trust, and otherwise affirmed,without costs.
This action was commenced by filing a summons with notice, which was signed on behalf ofthe entity plaintiffs and Joelle Kelly by two lawyers in Washington State who were not admittedto practice law in the State of New York. The lawyers also affixed the signature of plaintiff BrianKelly, designating him as a pro se plaintiff who had given permission for them to sign on hisbehalf. In response to defendant Katten's demand for a complaint, those lawyers provided anunsigned complaint, adding Salt Aire Investment Trust as a plaintiff. That complaint waspromptly rejected by Katten, which expressed concern that the Washington lawyers appeared tobe engaging in unauthorized practice of law. Subsequently, plaintiffs served a complaint signedby a New York lawyer. After unsuccessfully moving to dismiss the complaint on variousgrounds, Katten answered, asserting that the summons with notice was a nullity because it wasnot signed by an attorney properly admitted to practice law in the State of New York and,accordingly, plaintiffs had not properly commenced an action against it. Katten then moved forsummary judgment dismissing the complaint on that ground, and on the grounds, inter alia, thatall claims were time-barred.
In signing the pleading, the two out-of-state lawyers acted in violation of Judiciary Law§ 478, which makes it unlawful for a person to appear as an attorney in this State withouthaving been licensed and having taken the constitutional oath (see Whitehead v Town HouseEquities, Ltd., 8 AD3d 369, 370 [2004]). In addition, the pleading was not signed by anattorney or by a party acting pro se as required by 22 NYCRR 130-1.1a, and plaintiffs did notpromptly correct [*2]the defect after defendant objected.
Although plaintiff Brian Kelly had a right to represent himself, generally an individual whoexercises the right to act pro se cannot then appear through an attorney-in-fact or other person notauthorized to practice law (see Powerserve Intl., Inc. v Lavi, 239 F3d 508, 514 [2001];Whitehead at 370). Further, in opposition to the motion for summary judgment, hesubmitted an unsworn affidavit which, even if considered, fails to demonstrate that he authorizedthe signing of the summons with notice, leaving unchallenged defendant's assertion that thepleading was signed in that manner to circumvent the rule prohibiting the unauthorized practiceof law.
Although defendant did not reject the pleading or raise the issue in its initial moving papersdue to the defect in the signature, the court properly determined that the defect could not bewaived by defendant or by application of CPLR 2101 (f), since it involves violation of the law byattorneys practicing before the court without a license (see Empire HealthChoice Assur., Inc. v Lester, 81 AD3d 570[2011]; see generally Whitehead, 8 AD3d at 370-371). The proper remedy for violationby an attorney of a provision of the Judiciary Law is to strike the pleading "without prejudice"(see Kinder Morgan Energy Partners, LPv Ace Am. Ins. Co., 51 AD3d 580 [2008]; Neal v Energy Transp. Group, 296AD2d 339 [2002]; see CPLR 205 [a]).
The claims brought by Salt Aire Trust and the third, fifth and seventh causes of action, wereproperly dismissed with prejudice. Concur—Saxe, J.P., Sweeny, Renwick, DeGrasse andRichter, JJ.