Fitzgerald v. Willes

Appellate Terms of the Supreme Court of New York

Fitzgerald v. Willes

83 Misc. 2d 853

CourtAppellate Terms of the Supreme Court of New York

DecidedSeptember 16, 1976

StatusPublished

Cited by2 cases

This text of 83 Misc. 2d 853 (Fitzgerald v. Willes) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fitzgerald v. Willes, 83 Misc. 2d 853 (N.Y. Ct. App. 1976).

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Opinion

Per Curiam.

The Real Property Actions and Proceedings Law expressly permits a summary proceeding to be instituted by the legal representative or the attorney for the landlord, among others (Real Property Actions and Proceedings Law, § 721, subd 8). The petition under review was made by counsel as "attorney” for landlord and it was verified by him, under CPLR 2106, by affirmation in lieu of an oath before a notary.

The purpose of CPLR 2106 is to simplify the attorney’s practice and save him time and the inconvenience of appearing before a notary public. In this context, the provision of CPLR 2106 which does not permit its use where the attorney is a party to the action is interpreted as meaning an attorney who is an active litigant on his own behalf, or with a personal beneficial interest, and thus emotionally involved in the lawsuit and not an attorney who expressly acts for a client in bringing the proceeding as authorized by the statute. In this case, the petition was signed as the attorney for the landlord, thus deceiving no one, not the adversary, nor the court, nor the public.

Final judgment, entered March 26, 1975 (Aaron, H. O.), reversed and new trial ordered, without costs.

[855]*855Concur — Dudley, P. J., Fine and Frank, JJ.

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Per Curiam.

The Real Property Actions and Proceedings Law expressly permits a summary proceeding to be instituted by the legal representative or the attorney for the landlord, among others (Real Property Actions and Proceedings Law, § 721, subd 8). The petition under review was made by counsel as "attorney” for landlord and it was verified by him, under CPLR 2106, by affirmation in lieu of an oath before a notary.

The purpose of CPLR 2106 is to simplify the attorney’s practice and save him time and the inconvenience of appearing before a notary public. In this context, the provision of CPLR 2106 which does not permit its use where the attorney is a party to the action is interpreted as meaning an attorney who is an active litigant on his own behalf, or with a personal beneficial interest, and thus emotionally involved in the lawsuit and not an attorney who expressly acts for a client in bringing the proceeding as authorized by the statute. In this case, the petition was signed as the attorney for the landlord, thus deceiving no one, not the adversary, nor the court, nor the public.

Final judgment, entered March 26, 1975 (Aaron, H. O.), reversed and new trial ordered, without costs.

[855]*855Concur — Dudley, P. J., Fine and Frank, JJ.

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Bluebook (online)

83 Misc. 2d 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-v-willes-nyappterm-1976.

Opinion

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