CPLR 2103

Schoenefeld v State of New York,

___ NY3d ___, 2015 NY Slip Op 02674 [2015]

The Court of Appeals has construed Judiciary Law § 470 as indeed meaning what it says: a non-resident attorney, admitted to the Bar of New York and in compliance with all other requirements, may practice before the courts of the state only if she maintains a physical office for the transaction of business in New York. In so holding, the Court almost certainly paved the way for the US Court of Appeals for the Second Circuit to invalidate the statute under the Privileges and Immunities Clause of the US Constitution.

The statute reads: 
“A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.”

The Court responded to a certified question from the Second Circuit. (Schoenefeld v State of New York, 748 F.3d 464 [2d Circ., 2014]) Plaintiff Ekaterina Schoenefeld is a resident of New Jersey and a member of the New Jersey bar, whose only office is in Princeton. She has also been admitted to the bars of New York and California. She alleges in her complaint that she has in fact passed up the opportunity to represent clients in New York courts to avoid violating the Judiciary Law provision.

She sued in federal court, claiming that the requirement for the maintenance of an office in New York places a burden upon her and other non-resident attorneys, not placed upon residents. Read More

Matter of 985 Amsterdam Ave. Hous. Dev. Fund Corp. v Beddoe,

___ AD3d ___, 2015 NY Slip Op 02194 [1st Dept., 2015]

A properly-executed affidavit of service by mail raises a presumption that a proper mailing occurred, which is not overcome by a mere denial of receipt (Kihl v. Pfeffer, 94 N.Y.2d 118 [1999]). This is true even of entities which generate large volumes of documents served by mail. The presumption can be rebutted where the proof casts doubt on whether or not a particular document was, in fact, mailed as attested by the affidavit or, as here, even whether or not the document was ever generated in the first place.

The documents in question were default orders against the petitioner, allegedly generated by the Environmental Control Board regarding violation notices. Under the New York City Charter, the petitioner had 30 days from the receipt of the orders in which to request a new hearing for “good cause.” According to the ECB, that time had passed. Petitioner denied receiving the orders, and commenced this Article 78 proceeding. On the return of the Article 78 petition, the ECB was unable to produce copies of the notices and orders supposedly mailed to the petitioner. The trial court found that the presumption of mailing raised by the affidavits, and this finding was affirmed by the Appellate Division.

Interestingly, the trial court did make an error on another point, when it ordered ECB to grant petitioner another hearing. Since ECB had never actually considered whether petitioner had “good cause” for its default, the trial court could not make that determination for it. Rather, the matter had to be remanded to ECB for a determination of whether the defaults could be vacated for “good cause.”