44th St. Dev., LLC v. Apoian

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 18, 2019
• Docket: 2019 NYSlipOp 51837(U)
• Status: Published

Opinion

44th Street Development, LLC, Plaintiff,

against

Heather Apoian, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered January 15, 2019, which denied her motion to renew and reargue (denominated a motion to vacate) a prior order, dated September 18, 2018, which granted plaintiff's motion for summary judgment.

Per Curiam.

Order (Joan M. Kenney, J.), entered January 15, 2019, reversed, without costs, renewal granted, and upon renewal, the order granting plaintiff's motion for summary judgment vacated and the matter remanded for further proceedings consistent with this decision.

Notwithstanding that defendant's counsel, a nonresident attorney, did not maintain an office in New York State within the meaning of Judiciary Law § 470, the court should not have deemed defendant's answer a nullity. The Court of Appeals recently held that a nonresident attorney's failure to comply with the requirement of Judiciary Law § 470 of maintaining a physical office in New York State does not render the filing a nullity (see Arrowhead Capital Fin., Ltd. v Cheyne Specialty Fin. Fund L.P., 32 NY3d 645 [2019]). The party may cure the statutory violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel (id. at 650). Accordingly, we vacate the order and remand the matter to afford defendant an opportunity to cure the violation (see Marina Dist. Dev. Co., LLC v Toledano, 174 AD3d 431, 433 [2019]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 18, 2019