Summary
holding that a partnership of attorneys can appear pro se, citing Austrian with approval, and stating as dictum that CPLR § 321 is inapplicable to professional corporations of attorneys
Summary of this case from Carlo v. YorroOpinion
February 21, 1995
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the appeal from the order entered November 13, 1992, is dismissed, as that order was superseded by the order entered March 2, 1994; and it is further,
Ordered that the order entered August 13, 1993, the order entered March 2, 1994, and the judgment entered May 24, 1994, are affirmed; and it is further,
Ordered that the defendants are awarded one bill of costs.
The plaintiffs were retained by Hope Lennon, the deceased wife of the defendant Edward J. Lennon, Jr. to represent her in her action for divorce. After several years of protracted litigation, Hope Lennon died. The plaintiffs then instituted this action for attorney's fees against Edward J. Lennon, Jr. on the theory that their services to Hope Lennon in the divorce action constituted common-law "necessaries" for which her spouse could be held liable. The plaintiffs also named as defendants the couple's son, Brian Lennon, and his wife, Christine, both in their individual capacities, despite the fact that the complaint appeared to assert that Hope Lennon's estate, for which Brian and Christine Lennon were the executors, was liable for the plaintiffs' fees.
The trial court properly granted summary judgment in favor of Edward J. Lennon, Jr. inasmuch as the plaintiffs failed to offer any evidence tending to demonstrate that Hope Lennon, as primary debtor, was unable to satisfy the debt out of her own resources (see, Medical Bus. Assocs. v. Steiner, 183 A.D.2d 86).
Summary judgment was also properly granted to the defendants Brian and Christine Lennon. The plaintiffs never named these defendants in their capacities as co-executors of Hope Lennon's estate, and under no theory can they be held liable for the plaintiffs' fees in their individual capacities. We note that the plaintiffs affirmatively opposed the defendants' request that the complaint caption be amended to name Brian and Christine Lennon as defendants in their executory capacities.
Contrary to the plaintiffs' contention, the record supports the Supreme Court's award of costs to the defendants pursuant to Uniform Rules for Trial Court (22 N.Y.CRR) § 130-1.1, for, inter alia, the plaintiffs refusal to proceed with the depositions of Brian and Christine Lennon.
The Supreme Court properly denied that branch of the defendants' cross motion which sought to disqualify the plaintiff David C. Gilberg from representing the plaintiffs in this action. The plaintiff partnership is not subject to the rule against corporations and voluntary associations appearing pro se in civil actions set forth in CPLR 321 (a) (cf., Gasoline Expressway v. Sun Oil Co., 64 A.D.2d 647, affd 47 N.Y.2d 847). We note that this statute would be equally inapplicable were the plaintiffs associated as a professional corporation (see, Austrian, Lance Stewart v. Hastings Props., 87 Misc.2d 25; see also, Spinnell v. Doris L. Sassower, P.C., 155 Misc.2d 147; Infosearch v. Horowitz, 117 Misc.2d 774, 775).
In view of our affirmance of the Supreme Court's order granting summary judgment to the defendants, we need not reach the appeal from the Supreme Court's order of November 13, 1992.
We have examined the plaintiffs' remaining contentions and find them to be either without merit or not properly before this Court on the appeals from the orders and judgment in question. Bracken, J.P., Balletta, Friedmann and Krausman, JJ., concur.