New York Civil Practice Law and Rule (CPLR) § 321 permits parties prosecuting or defending a civil action to appear in person or by an attorney. However, the section has a very important exception that pertains to “corporation[s] or voluntary association[s],” which may otherwise only appear by counsel. This exception’s applicability encompasses more legal entities than may be fairly implied. As such, an executor or executrix cannot act pro se. This is particularly so because, while one may risk his or her own individual liberty or property interest, this risk is not permitted by the courts when one is representing the interests of others.
And while it may appear self-evident that corporations may not appear pro se, this prohibition on pro se representation also applies to partnerships, which were found to be a subset of voluntary associations, as well as limited liability companies, which are distinct from their members. The reasoning is, of course, that as such parties are fictitious entities, the courts prefer representation by someone who can be accountable to the court for his or her malpractice or conduct. It is important to note, however, that where a plaintiff corporate landlord chose to proceed pro se in Ernest & Maryanna Jeremias Family Partnership, it was estopped from later claiming that the judgment against it was unenforceable due to its own misconduct.
It is worth noting that, in practice, it is often the case that a corporate defendant may file a pleading in response to the complaint without asserting a jurisdictional objection. The question then arises regarding the effect of such unauthorized appearance on the course of the litigation. The unwitting corporate litigant may yet breathe a fictitious sigh of relief. Although not addressing this specific case, where an attorney purportedly on the defendant’s behalf made an unauthorized appearance without raising the jurisdictional objection, courts have held that the unauthorized appearance, made without contesting jurisdiction, does not cure the jurisdictional defect. It would stand to reason, then, that a pro se corporate defendant appearing without raising jurisdictional defense would similarly be protected despite its ignorant appearance.
Finally, a fictitious entity’s error in bringing a claim “for itself” or answering a complaint without counsel is not fatal, as the court in Hamilton Livery v. State of New York held that such defect is the type of irregularity that CPLR § 2001 could easily cure through amendment of the pleading by adding the signature of the corporate litigant’s counsel.
While the corporate litigant may very well be unaware of this rule, underscoring the very motive for its promulgation, the diligent in-house litigator or corporate counsel should very much make his or her client aware of its existence, as compliance or failure to comply therewith may very well have deleterious consequences for its litigation.
