Defendants Alden H. Wolfe, Esq. and Alden H. Wolfe, P.C. filed a motion to dismiss the complaint pursuant to CPLR 3211 (a) (3) alleging that plaintiff Yan Tsirklin lacks standing to bring this lawsuit in his personal capacity against his former attorneys.

The following papers were read and considered in connection with defendants' motion:

The instant action for legal malpractice, breach of fiduciary duty, negligent misrepresentation, constructive fraud, and breach of contract arises from plaintiff's allegation that defendants, plaintiff's former attorneys, deviated from the standard of care in representing him in the purchase of a 16 Handles franchise in New City, New York, causing him to suffer compensatory damages.

In their motion to dismiss, defendants argue that plaintiff, who is appearing pro se, lacks the legal capacity or standing to bring the lawsuit because plaintiff's complaint seeks compensatory damages sustained by plaintiff's company, Tasty Treats NY LLC, rather than by him, personally. The issue before this court is whether defendants were retained by plaintiff in his personal capacity or by plaintiff's company, Tasty Treats NY LLC, in which case plaintiff would lack standing.

Plaintiff commenced the instant action by the filing of a summons and complaint on August 26, 2025 (NYSCEF Doc. No. 1). Defendants filed their motion to dismiss on September 19, 2025, arguing that pursuant to CPLR 321 (a), corporations or voluntary associations must appear by attorney, and may not appear pro se. Defendants claim that they did not represent plaintiff in his personal capacity in connection with the transaction at issue because the purchaser was Tasty Treats NY LLC.

In opposition, plaintiff argues that he retained defendants as his attorneys by a signed engagement letter, paid defendants from his personal bank account via wire transfers and participated in a fee arbitration in his personal capacity when a fee dispute arose between the parties. Plaintiff further accuses defendants of going to unusual lengths to avoid accountability.

Notably, neither plaintiff's nor defendants' affirmations comply with CPLR 2016, which requires that all affirmants, including attorneys, provide specific language in their affirmations.

Initially, this Court notes that the affirmation of Gary L. Koenigsberg, Esq. dated September 16, 2025, filed in support of defendants' motion to dismiss the complaint, fails to comport with the recently amended statutory language of CPLR 2106 (NYSCEF Doc. No. 7).

CPLR 2106 provides as follows:

The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

I affirm this _____ day of __________, _____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

The subject affirmation is made only "under the penalties of perjury," which, effective January 1, 2024, is not legally sufficient. The Advisory Committee Notes to CPLR 2106 state, "While attorneys always have a professional duty to state the truth in papers, the affirmation under the proposed rule gives attorneys adequate warning of the possibility of prosecution for perjury for a false statement." (Zhou v Cent. Radiology, PC, 84 Misc 3d 410, 419 [Sup Ct, Queens County 2024].)

Further, inasmuch as the amended rule includes the word "shall" within its directive, the language set forth thereafter is mandatory and not merely a suggestion (see Diego Beekman Mut. Hous. Assn. Hous. Dev. Fund Corp. v Hammond, 81 Misc 3d 1244(A) [Civ Ct, Bronx County 2024]). The failure to include the required language as set forth in CPLR 2106 cannot be said to be harmless and renders the affirmation inadmissible and of no probative value (see Zhou at 419; R.F. v L.K., 82 Misc 3d 1221(A) [Sup Ct, Westchester County 2024]; see generally Matter of Grandsard v Hutchinson, 227 AD3d 491 [1st Dept 2024]; Great Lakes Ins. SE v American S.S. Owners Mut. Protection & Indem. Assn. Inc., 228 AD3d 429 [1st Dept 2024]; Fifth Partners LLC v Foley, 227 AD3d 543 [1st Dept 2024]; Kallo v Kane St. Synagogue, 241AD3d 522 [2d Dept 2025].) Accordingly, the affirmation of Gary L. Koenigsberg, Esq., filed in support of the within motion, lacks probative value and is inadmissible.

Alternatively, even if the Court were to consider the defendants' motion to dismiss the complaint on the merits, denial of the motion is still warranted.

Civil Practice Law and Rules 3211 (a) (3) allows the court to dismiss an action where the party bringing the action lacks the legal capacity to sue. CPLR 321 (a) allows a party to prosecute a civil action in person or by attorney but requires that a corporation appear by an attorney. Here, plaintiff Yan Tsirklin appears pro se and Tasty Treats NY LLC is not a named party.

"On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack [*2]of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing. To defeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff's submissions raise a question of fact as to its standing" (Golden Jubilee Realty, LLC v Castro, 196 AD3d 680, 682 [2d Dept 2021] [internal citations omitted]). Here, both parties separately submitted the engagement letter that established the attorney-client relationship between the parties (NYSCEF Doc. Nos. 9 & 17). The engagement letter is composed on Alden H. Wolfe, P.C.'s letterhead and it is addressed to the proposed client, Yan Tsirklin. The subject line reads, "RE: Tasty Treats NY LLC from Birdave Inc." The letter is signed by Alden H. Wolfe and Yan Tsirklin. The signature line provided for Yan Tsirklin does not identify Tsirklin in any capacity other than as an individual. Tsirklin is not addressed as an owner, shareholder, or representative of any company and his signature line does not classify him as an owner, shareholder, or representative of a company. (Cf. General Motors Acceptance Corp. v Kalkstein, 101 AD2d 102, 105-106 [1st Dept 1984] [holding that where documentary evidence indicates that individual signed an agreement in his corporate capacity, the agreement cannot be construed as a contract with him personally].)

Accordingly, while defendants argue that the causes of action in the complaint concern compensatory damages allegedly sustained by plaintiff's company, Tasty Treats NY, LLC, the documentary evidence provided by both parties indicates that plaintiff retained defendants in his personal capacity, and not as a member or officer of the corporate entity. At a minimum, plaintiff has raised a question of fact as to plaintiff's standing to bring this action in his personal capacity (see Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 60 [2d Dept 2015]).

Accordingly, it is hereby

ORDERED, that defendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (3) is DENIED; and it is further

ORDERED, that defendants shall serve this Order with Notice of Entry on plaintiff within ten (10) days of this Decision and Order with proof of service filed on NYSCEF within five (5) days thereafter; and it is further

ORDERED that defendants are directed to file an Answer within twenty (20) days of the date hereof.