Attorney's Violation of NY Home-Office Law Is Curable in Litigation, Court of Appeals Rules
The ruling was a unanimous reversal of a decision last year by the Appellate Division, which said litigation should have to start fresh if an attorney is found to have violated that law, making all past actions in the lawsuit null.
February 14, 2019 at 02:39 PM
4 minute read
The New York Court of Appeals held Thursday that past actions taken in a lawsuit should not be thrown out if the initial attorney bringing the litigation is found to have violated Section 470 of the state's judiciary law, which requires an attorney bringing litigation in the state to maintain a permanent office in New York.
The ruling was a unanimous reversal of a decision last year by the Appellate Division, which said litigation should have to start fresh if an attorney is found to have violated that law, making all past actions in the lawsuit null and void.
That section of state law 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.
That's what allegedly happened when Arrowhead Capital Finance sued Cheyne Specialty Finance Fund in 2014. Arrowhead retained Barry Goldin, a solo practitioner based in Allentown, Pennsylvania, to handle the litigation, which was over alleged breaches of two trust agreements between the two companies.
Less than a year after the lawsuit was filed, attorneys for Cheyne claimed they had discovered Goldin lacked a permanent office in New York. Jeffrey Korn, a partner at Willkie Farr & Gallagher in Manhattan, said a private investigator hired by Cheyne found no evidence of an office for Goldin at the address he provided on legal documents.
Cheyne moved to dismiss the lawsuit about a year after discovering Goldin's alleged noncompliance with the in-state office mandate. The same day the court granted Cheyne permission to file that motion, William Dahill, a partner at Wollmuth Maher & Deutsch in Manhattan, filed a notice to that he would also appear on behalf of Arrowhead in the case.
Manhattan Supreme Court Justice Shirley Werner Kornreich of the commercial division had already thrown out part of the lawsuit on different grounds before that point. Cheyne was seeking to have the rest of it tossed since Goldin allegedly didn't have an office in New York when the complaint was filed in 2014.
That won't happen after the Court of Appeals ruled Thursday that the litigation may continue at the trial court where it left off since Arrowhead had retained Dahill before the rest of the suit was dismissed.
The decision was based partly on the court's 1974 decision in Dunn v. Eickhoff that found if an attorney is disbarred while a lawsuit is ongoing, the previous actions in that litigation would not be considered null. Arrowhead argued that the same rule should apply in this case. Associate Judge Michael Garcia agreed with that stance.
“It would be incongruous to conclude that, unlike the acts of a disbarred attorney, actions taken by an attorney duly admitted to the New York bar who has not satisfied Judiciary Law § 470's office requirement are a nullity,” Garcia wrote. “Instead, the party may cure the section 470 violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel.”
Arrowhead was represented before the high court by Goldin. Goldin did not immediately return a call for comment Thursday.
Shaimaa Hussein, another partner at Willkie, argued before the court for Cheyne. She did not immediately return a request for comment.
The motion to dismiss was the result of investigatory work that's not ordinarily employed by a litigant who suspects an attorney may not have a permanent office in New York. Korn had written to the court in 2015 about Cheyne's efforts to scope out Goldin's alleged in-state address.
“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.
Korn did not immediately return a request for comment on the case heading back to the trial court.
READ MORE:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllTrade Fixtures In New York Eminent Domain Cases - What Qualifies and How Are They Valued?
10 minute readTrending Stories
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250