Commercial Division Blog
Action Dismissed Because Plaintiff's Counsel Did Not Maintain Office in New York
On October 17, 2017, the First Department issued a decision in Arrowhead Capital Finance, Ltd. v. Cheyne Specialty Finance Fund L.P., 2017 NY Slip Op 07219, affirming the dismissal of an action because plaintiff's counsel did not maintain an office in New York state in violation of Judiciary Law Section 470, explaining:
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 § 470. 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 § 470 was a nullity. The court properly permitted defendants to make a second dispositive motion to dismiss since at the time of the first motion defendants had no reason to suspect that plaintiff's counsel may have violated Judiciary Law § 470.
Defendants did not waive their right to argue that plaintiff's counsel violated Judiciary Law § 470. Contrary to plaintiff's contention, the court properly considered evidence submitted in defendants' reply papers that was responsive to plaintiff's claims in opposition to defendants' motion. Contrary to defendants' further contention, the court was not bound by the holding of a federal district court at the time of the commencement of this action that Judiciary Law § 470 was unconstitutional.
(Internal quotations and citations omitted).