Bank v. Calderone

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. The defendant moved to dismiss the complaint, arguing that, based on the plaintiffs filings with the Supreme Court, the attorney who commenced the action on the plaintiffs behalf did not maintain an office “for the transaction of law business” within this State in violation of Judiciary Law § 470. In opposi 779 tion, the plaintiffs counsel provided an affidavit indicating that she maintained an office at the plaintiffs Brooklyn location. The defendant failed to rebut the plaintiffs evidence and, thus, he did not demonstrate that the plaintiffs attorney was in violation of Judiciary Law § 470 (see Matter of Scarsella, 195 AD2d 513, 515-516 [1993]; cf. Elm Mgt. Corp. v Sprung, 33 AD3d 753, 754 [2006]). Moreover, even had the defendant demonstrated that the plaintiffs 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. Dillon, J.E, Covello, Eng and Chambers, JJ., concur.