Marte v Graber

[*1] Marte v Graber 2007 NY Slip Op 52348(U) [17 Misc 3d 1139(A)] Decided on October 5, 2007 Civil Court Of The City Of New York, New York County Engoron, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 5, 2007
Civil Court of the City of New York, New York County

Amin Marte, Plaintiff,

against

Sandra Graber, as voluntary administrator of the Estate of Herman Graber, deceased, Defendant.



300260 TSN 2007

Arthur F. Engoron, J.

Background

The simple factual allegations of this case are not at the heart of the instant motion, but this Court will provide a brief, broad-brush description of them, solely for context. Plaintiff claims that he paid defendant's decedent some eight thousand, five hundred dollars to perform legal services; that decedent never performed any legal services at all; and that defendant, decedent's widow, is the administrator of his estate.

The procedural history of this case (not to mention the intense acrimony between counsel that it has generated) is not as simple, but suffice it to say that the plaintiff sued in Supreme Court; defendant moved to dismiss on a variety of grounds; Justice Barbara Kapnick denied the motion and, pursuant to CPLR 325(d), sent the case to this Court; defendant appealed the denial and moved for reargument thereof; in a decision dated August 8, 2007, Justice Kapnick denied the motion to reargue; and the appeal is still pending.

Defendant now moves to dismiss the instant action on the ground, essentially, that plaintiff (and, by turn, the Supreme Court), never had jurisdiction over this matter, in particular because plaintiff commenced the action against Herman Graber after he had died. In the course of his papers, defendant's counsel also argues that plaintiff's counsel had unethical contact with defendant; that plaintiff is improperly seeking to amend his complaint; that the Statute of Limitations bars the instant action; and that the action has no merit, as plaintiff did not pay decedent any money.

Plaintiff parries these arguments and thrusts with the contention that defendant's counsel fails to satisfy the requirement set forth in Judiciary Law § 470, that he have an "office for the transaction of law business . . . within the state [of New York]."

[*2]Discussion

The instant motion is denied for two interdependent reasons and one completely independent reason: (1) as a matter of "law of the case"; (2) on the merits; and (3) for plaintiff's counsel's failure to comply with Judiciary Law § 470.

As noted, the heart of the instant motion is the claim that plaintiff and the court do not have jurisdiction over defendant. However, in her August 8 decision, Justice Kapnick stated that defendant was seeking to reargue her denial of defendant's motion to dismiss on the ground that "this Court lacks jurisdiction over the estate or the personal representative of the estate because the action was commenced against the decedent." Thus, defendant is groping for a second or third if you count the motion to reargue or fourth, if you count the pending appeal bite at the apple. Justice Kapnick concluded that "it appears that jurisdiction was, in fact, obtained over Mrs. Graber as voluntary administrator of the estate." Thus, that plaintiff and the court have obtained jurisdiction over defendant is "law of the case."

The bulk of Justice Kapnick's August 8 decision is a justification of her conclusion that a six-year contractual limitation period applies to the instant action. Again, this is "law of the case." Furthermore, this Court does not discern any unethical contact by plaintiff's counsel, under the particular facts and circumstances of this case, in mailing papers to defendant, nor does it consider plaintiff's amending of the caption reflecting the move to Civil Court to be an improper amendment of the summons and complaint, again under the particular facts and circumstances of this case (nor, apparently, did Justice Kapnick consider anything to be amiss). Defendant's contention that the instant action has no factual merit is not a ground set forth in the instant notice of motion (which, in any event, seeks dismissal, not summary judgment), but the action appears at least plausible pursuant to a "third-party beneficiary" contract theory.

Finally, whatever, exactly, the legislators meant by an "office for the transaction of law business," nothing defendant's counsel says, even taking him at full face value, suggests that he has one. Admittedly, defendant's counsel is licensed to practice law here, but that is not the issue. Nor is where he lives, which is in Wilmington, North Carolina. The official New York State Office of Court Administration ["OCA"] website lists his address as "Bradford Products LLC [for whom counsel states he works], 710 Sunnyvale Drive, Wilmington, NC 28401," His legal papers, including, in particular, the instant moving papers, indicate his address as 722 Dock Street, Wilmington, NC 28401" and his telephone number as "910-409-4345." Counsel moved to North Carolina (from New Jersey, as it happens) and says that he is phasing out his practice.

In response to all of the evidence of his North Carolina presence, counsel claims that he has an office in North Carolina and in New York, at 111 Broadway, Ste. 1305 (apparently), New York City and that his alleged New York City address is also "registered" with OCA.[FN1] However, he does not claim that he is ever there (or when he was ever there); he does not claim that he [*3]currently has telephone service there; he does not claim that he has any employees that are ever there. Indeed, all that he claims (and he offers some empirical evidence for this) is that mail is forwarded to him from this location.

In this Court's long-held view, the general purpose of the statute is so that an attorney can be located and held somewhat accountable in New York, be it by personal confrontation, the seizure of assets, or service of process. The forwarding of mail some 600 miles does not fulfill these purposes. Furthermore, the statute requires an "office," not an "address" (or "forwarding address").

In Keenan v Mitsubishi Estate, New York, Inc., 228 AD2d 330, 331 (1st Dept 1996), the court reversed a Judiciary Law § 470 dismissal, stating as follows: the attorney who filed the summons and complaint on behalf of plaintiff was admitted to the bar of this State, as were other members of the firm that employed him, and that, although the firm's principal place of business was in Hackensack, New Jersey,[FN2] it had entered into a reciprocal satellite office sharing agreement with a firm located on lower Broadway in New York County. The terms of this agreement and other evidence clearly show that the firm maintained an office to engage in the "transaction of law business" in this State within the meaning of the statute.

In such a short opinion, especially, one assumes that all of the stated facts, to wit, the proximity, the other attorneys, and, in particular, the "reciprocal satellite office sharing agreement" (not to mention the "other evidence"), were significant. None of those facts are present here.

Thus, this Court finds that defendant's counsel does not have an "office for the transaction of law business" in New York.

Counsel claims that plaintiff's remedy, if any, is a motion to disqualify. However, while that would also have been (and still is) an option, this Court believes that its general supervisory control over the attorneys appearing on a case before it, as well as the Court's general obligation to uphold the laws of the State of New York, allow it to deny (as a solitary or independent ground) an affirmative request for relief presented by an attorney who is no longer qualified to practice in this jurisdiction.

Counsel cites to case law to the effect that proceedings undertaken by an attorney not qualified to practice in New York are nonetheless not automatically deemed a nullity. However, here the issue is whether relief can be granted prospectively. This Court believes that it cannot.

[*4]Conclusion

Thus, for the reasons set forth hereinabove, the instant motion is denied

Dated: October 5, 2007

Arthur F. Engoron, J.C.C. Footnotes

Footnote 1: Upon information and belief, OCA does not inspect offices but, rather, takes on faith whatever addresses are given to it.

Footnote 2: This Court takes judicial notice that Hackensack, New Jersey, is, roughly speaking, just across the Hudson River from New York City.