VENTUS PROPERTIES LLC v. CHAE (2025)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Mo Chae appeals from an order of the Supreme Court, Suffolk County (Paul M. Hensley, J.), dated June 21, 2023.  The order, after a nonjury trial, directed the entry of judgment on the complaint insofar as asserted against the defendant Mo Chae and appointed a referee to determine, inter alia, the amount due to the plaintiff.

ORDERED that upon this Court's own motion, the notice of appeal from the order is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]);  and it is further,

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial on the issues of the plaintiff's standing and compliance with RPAPL 1304.

The plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Mo Chae (hereinafter the defendant).  The matter was subsequently set down for a trial limited to the issues of the plaintiff's standing and compliance with RPAPL 1304.  At the trial, the defendant was represented by her husband, John Chae, a nonlawyer who held a power of attorney for the defendant.  The Supreme Court did not permit the defendant to testify at the trial due to the fact that her husband held a power of attorney.  At the conclusion of the trial, the court found in favor of the plaintiff.  By order dated June 21, 2023, the court directed the entry of judgment on the complaint insofar as asserted against the defendant and appointed a referee to determine, inter alia, the amount due to the plaintiff.  The defendant appeals.

“ ‘New York law prohibits the practice of law in this State on behalf of anyone other than himself or herself by a person who is not an admitted member of the Bar, regardless of the authority purportedly conferred by execution of a power of attorney’ ” (Discover Bank v. Gilliam, 199 A.D.3d 645, 646, 156 N.Y.S.3d 391, quoting People ex rel. Field v. Cronshaw, 138 A.D.2d 765, 765, 526 N.Y.S.2d 579;  see Matter of Welsh [Commissioner of Labor], 51 A.D.3d 1351, 1352, 860 N.Y.S.2d 639).  “The designation as an attorney-in-fact under General Obligations Law §§ 5–1502A–N does not confer upon a designated agent the right to provide representation as an attorney-at-law, and ‘cannot be read to displace the provisions of Judiciary Law § 478’ ” (Discover Bank v. Gilliam, 199 A.D.3d at 646–647, 156 N.Y.S.3d 391, quoting Whitehead v. Town House Equities, Ltd., 8 A.D.3d 369, 370, 777 N.Y.S.2d 917).

In this case, none of the exceptions to Judiciary Law § 478 apply.  Moreover, John Chae's marriage to the defendant did not permit him to appear pro se on her behalf (see Discover Bank v. Gilliam, 199 A.D.3d at 647, 156 N.Y.S.3d 391).  “As a general rule, the fact that a party has been represented by a person who was not authorized or admitted to practice law under the Judiciary Law—whether a disbarred attorney or a person practicing law without a license—does not create a ‘nullity’ or render all prior proceedings void per se” (Elm Mgt. Corp. v. Sprung, 33 A.D.3d 753, 754, 823 N.Y.S.2d 187;  see Stegemann v. Rensselaer County Sheriff's Off., 153 A.D.3d 1053, 1055, 61 N.Y.S.3d 696).  Here, however, the record demonstrates that the defendant was prejudiced as a result of being represented by an unauthorized attorney at the trial (see Matter of Lackas, 65 A.D.2d 800, 410 N.Y.S.2d 307).  Further, the Supreme Court erred in precluding the defendant from testifying at the trial (see CPLR 321[a]).

Under the circumstances of this case, the Supreme Court should not have directed the entry of judgment in favor of the plaintiff without permitting the defendant the opportunity to participate in the trial either pro se or with appropriate counsel (see Discover Bank v. Gilliam, 199 A.D.3d at 647, 156 N.Y.S.3d 391).  Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a new trial on the issues of the plaintiff's standing and compliance with RPAPL 1304.

BRATHWAITE NELSON, J.P., WOOTEN, WARHIT and VENTURA, JJ., concur.