[*1]
LVN Corp. v Khan
2014 NY Slip Op 51529(U) [45 Misc 3d 1210(A)]
Decided on October 22, 2014
Supreme Court, Bronx County
Thompson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through January 13, 2016; it will not be published in the printed Official Reports.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, Jr., 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————————&mdas h;___1___



Answering Affidavit and Exhibits———— —————————&mdas h;—————————&md ash;—————————_______



Replying Affidavit and Exhibits————————&mdas h;—————————&md ash;—————————& mdash;—————-_______

Affidavit—————————— ;——————————— 51;———————————& #151;—————————_______



Pleadings — Exhibit————————— —————————&mdas h;—————————&md ash;—————————& mdash;———_______



Memorandum of Law——————————— ——————————— 51;———————————& #151;—————- ______ Stipulation — Referee's Report —Minutes———————&mdash ;—————————&mda sh;—————————&m dash;—________Filed papers————————— —————————&mdas h;—————————&md ash;—————————& mdash;———-_______________



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.