Supreme Court, Appellate Division, Second Department, New York.
Sovereign Bank, respondent, v. Oscar Calderone, appellant.
2010–08471 (Index No. 12032/08)
Decided: May 03, 2011
MARK C. DILLON, J.P. JOSEPH COVELLO RANDALL T. ENG CHERYL E. CHAMBERS, JJ.
The Law Firm of Jeffrey L. Solomon, PLLC, Woodbury, N.Y., for appellant. Riker Danzig Scherer Hyland & Perretti LLP, New York, N.Y. (Jonathan P. Vuotto of counsel; Gerald A. Liloia on the brief), for respondent. The defendant moved to dismiss the complaint, arguing that, based on the plaintiff's filings with the Supreme Court, the attorney who commenced the action on the plaintiff's behalf did not maintain an office “for the transaction of law business” within this State in violation of Judiciary Law § 470. In opposition, the plaintiff's counsel provided an affidavit indicating that she maintained an office at the plaintiff's Brooklyn location. The defendant failed to rebut the plaintiff's evidence and, thus, he did not demonstrate that the plaintiff's attorney was in violation of Judiciary Law § 470 (see Matter of Scarsella, 195 A.D.2d 513, 515–516; cf. Elm Mgt. Corp. v Sprung, 33 AD3d 753, 754). Moreover, even had the defendant demonstrated that the plaintiff's counsel was in violation of Judiciary Law § 470, such violation would “not provide a basis for the defendant to have the complaint against him dismissed” (Elm Mgt. Corp. v Sprung, 33 AD3d at 754). Accordingly, the Supreme Court properly denied the defendant's motion to dismiss the complaint.
Argued—April 14, 2011
DECISION & ORDER
In an action to foreclose a mortgage, the defendant appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered August 9, 2010, which denied his motion to dismiss the complaint pursuant to Judiciary Law § 470.
ORDERED that the order is affirmed, with costs.
DILLON, J.P., COVELLO, ENG and CHAMBERS, JJ., concur.
Matthew G. Kiernan
Clerk of the Court