Thursday, January 28, 2010

SMALL BUSINESSES - APPEARING PRO SE

You are a small business owner operating in corporate form. You are being sued. You can't afford an attorney. What do you do?

As a general rule, you can only appear by an attorney. CPLR 321 (a) provides:

"Attorneys. (a) Appearance in person or by attorney. A party,
other than one specified in section 1201 of this chapter, may prosecute
or defend a civil action in person or by attorney, except that a
corporation or voluntary association shall appear by attorney, except as
otherwise provided in sections 1809 and 1809-A of the New York city
civil court act, sections 1809 and 1809-A of the uniform district court
act and sections 1809 and 1809-A of the uniform city court act, and
except as otherwise provided in section 501 and section 1809 of the
uniform justice court act. If a party appears by attorney such party may
not act in person in the action except by consent of the court."

Thus, unless the action against the small business owner operating in corporate form is a defendant in a small claims or a commercial claim transaction in one of the lower courts, an attorney must be retained. If you fall within the exceptions, you may appear pro se. Sometimes, the clerks of the lower courts are not aware of these exceptions so I would advise small business corporate owners to get a copy of the above statute and a copy of the relevant exception and bring it with them when they file an answer.

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