Marina Dist. Dev. Co., LLC v Toledano

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[*1] Marina Dist. Dev. Co., LLC v Toledano 2018 NY Slip Op 50926(U) Decided on June 18, 2018 Supreme Court, New York County Nervo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2018
Supreme Court, New York County

Marina District Development Co., LLC T/A BORGATA, Plaintiff,

against

Raphael Toledano, Defendant.



650230/2018



Plaintiff's counsel: Josiah Knapp Law, PC, 100 S. Broad Street, Suite 930, Philadelphia, Penna 19110-1060 (215) 419-5880

Defense counsel: None.
Frank P. Nervo, J.

The court considered the following papers on this motion: Notice of motion for summary judgment in lieu of complaint, affidavit in support of motion and exhibits 1,2; additional affidavit in support of motion 3.

On reading the foregoing papers it is

ORDERED that the motion is denied; and it is further

ORDERED that on the court's own motion the action is dismissed on the grounds that it is a nullity; and it is further

ORDERED that the dismissal is without prejudice to a new action under a new index number in which plaintiff is represented by an attorney who may practice law in New York.

Plaintiff moves for summary judgment in lieu of complaint (CPLR 2213), based on a New Jersey default judgment. The court will not reach the merits of that motion, as it finds that plaintiff's attorney, although admitted to practice in New York, does not maintain an office here within the meaning of Judiciary Law §470. ( see Schoenfeld v. State of New York, 25 NY3d 22, 27.) In this case, plaintiff could not have commenced the action pro se as it is a corporation. It had to commence this action by an attorney who is competent to practice in New York. Therefore, the action is a nullity ( see Lichtenstein v. Emerson, 171 Misc 3d 933, affd. 251 AD2d 64)

The court rejects the attorney's argument that his membership at a virtual law office at The New York City Bar qualifies as the office required by Judiciary Law § 470, supra. By definition, a virtual office is not an actual office. The court is not persuaded to the contrary by the affidavit the attorney provides from a person affiliated with the latter organization. That [*2]affidavit states that the organization will take telephone messages for a member and that it will forward mail to that member. It also states that meeting rooms may be made available to that member. However, the attorney's own papers negate any possibility that he uses the City Bar's facilities as his office and actually demonstrate that he does not use this as an office. His papers indicate that he does not want mail sent to the organization's address; rather, he directs that all correspondence be sent to his actual office in Philadelphia. He does not list the organization's telephone number on his papers; rather, he lists his Philadelphia telephone number. He does not assert that he has ever used the organization's physical facilities for any purpose.

While the court is not bound by the holdings of courts other than the Court of Appeals or the Appellate Divisions (see Mountain View Coach v. Storms, 102 AD2d 663), the court agrees with the reasoning and holding in the recent Appellate Term, First Department in Law Offices of Angela Barker, LLC v. Broxton, __Misc.3d___, 2018 Slip Op 2816) That court declined to permit a virtual office to qualify as an physical office for the practice of law, as such an office, as is the office in this case, is nothing more than an address.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.



Dated: June 18, 2018

ENTER:

_______________ JSC