The New York Court of Appeals is scheduled to hear arguments next week on whether a lawsuit was appropriately dismissed after the out-of-state attorney who brought the complaint allegedly did not have a permanent office in New York.

The high court will be tasked with deciding whether the case should be reinstated because the plaintiff on the suit, Arrowhead Capital Finance, additionally retained a firm within New York before the case was dismissed.

The company had initially retained Barry Goldin, a solo practitioner from Allentown, Pennsylvania, who claimed he also had an office in Manhattan when the lawsuit was filed in 2014. Goldin is licensed to practice in New York and did not seek special permission from the trial court to appear on behalf of Arrowhead.

Less than a year after the lawsuit was filed, attorneys for the defendant, Cheyne Specialty Finance Fund, claimed they discovered Goldin had been less than honest about having an office in Manhattan. Jeffrey Korn, a partner at Willkie Farr & Gallagher in Manhattan, said a private investigator hired by Cheyne paid a visit to the address where Goldin had claimed to have an office. There was no evidence he had space there, Korn wrote in 2015.

“A recent visit to the 240 Madison Avenue address that appears on pleadings beneath Mr. Goldin's Pennsylvania address revealed no evidence of him having a physical law office there: his name is not in the building directory and the only company seemingly occupying the floor listed by Mr. Goldin is called 'Edit Limited,'” Korn wrote.

Nearly a year later, after part of the lawsuit was already tossed, attorneys for Cheyne asked Manhattan Supreme Court Justice Shirley Werner Kornreich of the Commercial Division for permission to file another motion to dismiss based on the dispute over Goldin's office.

The same day Kornreich gave Cheyne permission to file that motion, William Dahill, a partner at Wollmuth Maher & Deutsch in Manhattan, filed a notice to the court that he would also appear on behalf of Arrowhead in the case.

Korn and Tariq Mundiya, another partner at Willkie, argued in their motion to dismiss the lawsuit that adding an attorney from Wollmuth was too little too late for Goldin and Arrowhead. They claimed part of the state's judiciary law, Section 470, prohibits out-of-state attorneys from bringing a lawsuit in New York if they don't have a physical office in the state, regardless of whether they're licensed to practice there or not.

Kornreich granted the motion to dismiss the lawsuit in its entirety. The Appellate Division, First Department, upheld that decision, saying the state's judiciary law requires an attorney who files a lawsuit in New York to have a physical office in the state. In other words, Arrowhead was not allowed to have Goldin bring the lawsuit and then add a New York firm later, the appellate court wrote.

“The record supports the court's determination that plaintiff's counsel failed to maintain an in-state office at the time he commenced this action, in violation of Judiciary Law Section 470,” the Appellate Division said. “Plaintiff's subsequent retention of co-counsel with an in-state office did not cure the violation, since the commencement of the action in violation of Judiciary Law Section 470 was a nullity.”

The court's point on nullity was the impetus for Arrowhead's appeal to the Court of Appeals. Goldin, who will appear for Arrowhead, argued in his brief to the high court that separate decisions by two of the state's other appellate courts conflicted with the Appellate Division's decision in this case. The other decisions, Goldin said, found the violation of Section 470 can be cured when another attorney with an office in New York is retained.

“Those Second and Third Department decisions instead holding failure of plaintiff's New York counsel to maintain sufficient New York 'office' at the time of the complaint filing did not render the complaint a 'nullity,' and such 'office' compliance defect can be cured by appearance for plaintiff of counsel having sufficient in-state New York 'office,'” Goldin wrote.

Attorneys for Cheyne argued in their brief that even if the Court of Appeals found the addition of a New York firm allowed the case to be revived, that doesn't mean Goldin's previous actions in the lawsuit should be valid. Shaimaa Hussein, another partner at Willkie, will argue for Cheyne before the Court of Appeals.

“That makes no sense,” the filing said. “Had new counsel never appeared, there would be no question that Mr. Holdin's prior actions in violation of Section 470 would be null and void. Adding new counsel does not retroactively transform those actions into legitimate conduct by an attorney authorized to practice law in the state.”

The Court of Appeals will be tasked with deciding whether the case should resume as it had before the trial court dismissed it completely in 2016, or whether Arrowhead will have to bring an entirely new complaint against Cheyne. That will depend on whether the high court sees Arrowhead's later choice to retain attorneys with Wollmouth on the lawsuit as a cure to Goldin's alleged violation of the state's judiciary law, or if that effort was moot in their opinion.

Goldin has continued to maintain, regardless of the lower court decisions, that he had an office in New York when the lawsuit was initially filed in 2014.

“Arrowhead filed detailed affidavits as to sufficiency of attorney Goldin's in-state office—including (among other things) his access to and use of those in-state offices provided to him by a client in return for his substantial services rendered without charge for that client,” Goldin said.

If the court sides with Goldin on the appeal, the lawsuit against Cheyne will resume. The litigation was initially brought over alleged breaches of two trust agreements between the two companies.

The Court of Appeals is scheduled to hear arguments in the case Jan. 9.

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