A New York appellate court reversed a trial court's decision to let a consumer-defendant's spouse, under a power of attorney, to "stand in" for him for purposes of conducting a traverse hearing. A traverse hearing is a hearing conducted by a judge to determine if service was effectively made under New York Law. See this blog post for some legal authority as to what is required of process servers at a traverse hearing.
In Pinpoint Technologies 3, LLC v Mogilevsky, a lower court permitted a consumer-defendant's wife to replace him at a traverse hearing pursuant to a power of attorney. The court honored the power of attorney for limited purposes. For example, the wife could not question witnesses or testify. At hearing's conclusion, the court found that service was not lawfully made.
An appellate court, however, reversed the civil court's ruling, and disallowed the acceptance of the power of attorney at the traverse hearing. The appellate court stated, "it is well settled that "a person not licensed to practice law in the State of New York pursuant to the judiciary Law may not appear pro se in court on behalf of a litigant as an attorney-in-fact pursuant to a power of attorney, as that constitutes the unauthorized practice of law."[1]
Moreover, the court found that the process server's "detailed testimony" should have sufficiently proven good service anyway. But what if the civil court judge weighed other factors not seen by the appellate court (i.e. demeanor evidence, condition of server's records, credibility)?
In any event, this office has defended many cases brought by Pinpoint Technologies, LLC and its affiliated entities, including LR Credit, LLC and Mel Harris & Associates, LLC. If you are being sued by any of these firms listed here, contact us for a free consultation.
[1] 91 E. Main St. Realty Corp. v Angelic Creations by Lucia, 24 Misc 3d 25, 28 [App Term, 9th & 10th Jud Dists 2009], quoting Whitehead v Town House Equities, Ltd., 8 AD3d 369, 370 [2004]).