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Can a Landlord Represent LLC Himself in Housing Court?

NYC Housing Court Practice/Procedures

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Can a Landlord Represent LLC Himself in Housing Court?

Postby nyclifer » Sat Oct 22, 2011 6:18 pm

I have been sparring with my landlord recently as I am considering taking him to Housing Court. I recall reading that if an LLC owns the building, the LLC must use an attorney to argue the case in court which would means my landlord will rack up big legal fees. He tells me that's not true and he'll be representing the LLC in Court as the "managing member" and will not hire an attorney to handle the case.

Which one of us is correct? Thank you.
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Postby TenantNet » Sat Oct 22, 2011 8:27 pm

I think you are correct. According to CPLR Sec. 321(a)

(a) Appearance in person or by attorney. A party,
other than one specified in section 1201 of this chapter, may prosecute
or defend a civil action in person or by attorney, except that a
corporation or voluntary association shall appear by attorney, except as
otherwise provided in sections 1809 and 1809-A of the New York city
civil court act, sections 1809 and 1809-A of the uniform district court
act and sections 1809 and 1809-A of the uniform city court act, and
except as otherwise provided in section 501 and section 1809 of the
uniform justice court act. If a party appears by attorney such party may
not act in person in the action except by consent of the court.


The CPLR doesn't exempt LLC's so I think you are correct. But I would also suggest you find out from an attorney or do your own research on that. First thing, is the owner an attorney himself?

As to the wisdom of objecting, that's another matter. You know the old adage, the person who represents himself has a fool for a client. Perhaps it might be better to let him do it ... and make mistakes.

Remember, as delicious as it may seem, the point is to win, not make him rack up mountains of legal fees. That's a strategy I'd think through.
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Postby ronin » Mon Oct 24, 2011 11:14 am

One of the big disincentives for a corporation is the need to hire an attorney for court. The expense becomes part of the equation. If he is small enough to want to save the money by suing by himself then that will be a big factor.

I'm not sure I agree with Tenant here. Waiving your objection to his lack of standing to represent the corporation will mean that the court will be able to reach the merits (technically that can be attacked too). Raising the objection means that he has to start over from scratch (b/c petition is invalid). Starting over from scratch and paying a new fee is a great incentive for the LL to reach a deal with you.

Going to the merits in the LL friendly Housing Court where half of the judges can't spell CPLR is dangerous at best. Some of the judges will take it upon themselves to help the LL. If you raise it and the judge ignores it you have a rock solid appeal- this is about getting lawyers work and no other reason- that the bench and bar will protect all the up to the Second Circuit.

Some courts allow corps to be represented by officers. Civil court is one place it can be done with small claims and commercial claims (under $5000). The housing part of the Civil Court does not have that same exception but sometimes they let it go.
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Postby TenantNet » Mon Oct 24, 2011 11:37 am

It can go either way and as Ronin points out, there are arguments to the wisdom of making the objection. I am aware of the rule because years ago my LL's lawyer made an objection about our building's tenant association not being represented by a lawyer. The rule also applies to unincorporated associations. One way around that is to make the appearance on behalf of yourself individually and also on behalf of the association. That way if the LL attorney objects, you still have the case representing yourself individually.

Ronin also points out that lazy HC judges might ignore the objection, but you need if for appeals.
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Postby NYHawk » Tue Oct 25, 2011 4:59 am

"the LLC may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the state of New York"

http://scholar.google.com/scholar_case?case=4686110363203324440&q=321%28a%29+llc+represented+attorney&hl=en&num=50&as_sdt=4,33
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Postby TenantNet » Tue Oct 25, 2011 5:36 am

Thanks NYHawk. I'm posting the text of the decision here to save lazy readers from having to click and click back :)

40 A.D.3d 592 (2007)
835 N.Y.S.2d 640
MICHAEL REILLY DESIGN, INC., Respondent,
v.
MARK HOURANEY et al., Appellants.


Appellate Division of the Supreme Court of the State of New York, Second Department.
Decided May 1, 2007.

593*593 Prudenti, P.J., Schmidt, Crane and Mastro, JJ., concur.

Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is

Ordered that on the Court's own motion, the appeal by Mark Houraney is dismissed, without costs or disbursements, as he is not aggrieved by the judgment (see CPLR 5511); and it is further,

Ordered that on or before June 1, 2007 the appellant Northeast Holdings, LLC shall retain an attorney to represent it on this appeal and the attorney shall notify the Clerk of this Court in writing whether he or she adopts the record and brief previously filed or wishes to file a new or supplemental record and/or brief; if the attorney adopts the record previously filed, he or she shall file a certification pursuant to CPLR 2105; and it is further,

Ordered that in the event that the appellant Northeast Holdings, LLC, does not comply with the above provision, the Court will dismiss the appeal; and it is further,

Ordered that the motion is denied as academic in light of the above.

The judgment appealed from is only against the defendant Northeast Holdings, LLC. The judgment severs the action as against the defendant Mark Houraney. Accordingly, Houraney is not aggrieved, by the judgment, and the appeal taken by him must be dismissed (see CPLR 5511).

Northeast Holdings, LLC, is a limited liability company (hereinafter LLC). Houraney is a member of the LLC and appears pro se purportedly on behalf of the LLC. Houraney is not an attorney admitted to practice in the state of New York. We take this opportunity to address an issue which seems to have evaded appellate review in this state; namely, whether an LLC member who is not an attorney admitted to practice in the state of New York may prosecute an appeal on behalf of an LLC, or whether the provisions of CPLR 321 apply so as to require the LLC to retain an attorney.

An LLC, like a corporation or voluntary association, is created to shield its members from liability and once formed is a legal entity distinct from its members (see Tierra W. Apts. LLC v Bobadilla, NYLJ, Apr. 21, 1999, at 27, col 2 [Civ Ct, NY County]; Monte Carlo v Yorro, 195 Misc 2d 762 [Dist Ct, Nassau County 2003]). Accordingly, like a corporation or a voluntary association, the LLC may only be represented by an attorney and 594*594 not by one of its members who is not an attorney admitted to practice in the state of New York (id.; see also Limited Liability Companies: Tax and Business Law, ch 5, ¶ 5.05 [1] [e]; 1 Ribstein and Keatinge on Limited Liability Companies ch 3).
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Postby TenantNet » Tue Oct 25, 2011 5:42 am

An interesting point about this rule is that some annoying landlord lawyers, presumably as an intimidation tactic, try to portray a building's tenants association as not really existing and only one or a few out-of-control tenants.

Like unions, the existence of a tenants association does not depend on a landlord's approval. To become an unincorporated association, it really depends on the decision of various tenants to do so. It can be strengthened by opening a bank account, incorporating and so on. But there's no requirement to have certain officers, or to have held X number of meetings and so on.

But when a landlord objects pursuant to CPLR 321, in my opinion, that's an implicit recognition of the association's existence.
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Postby ronin » Thu Oct 27, 2011 11:44 pm

By the way. This rule makes no sense in the case of tenant associations which are very small and not profitable enough to pay for an attorney. Just like the legislature can waive the "attorneys only" rule in commercial and small claims court, they can do it for tenant associations in housing court. It is really just a matter of the legislature acting. This whole rule is actually BS. It is the attorneys monopolizing an entire third of the constitutional government. When Lincoln was a lawyer, he was able to self-teach himself law and start practicing without kowtowing to a glorified trade organization.

So the solution, call your legislators and demand an end to the attorney monopoly on the courts.

(Sigh... but most people are too lazy to fight something so unsexy)
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