Opinion
651962/14, 4695, 4694, 4693.
10-17-2017
ARROWHEAD CAPITAL FINANCE, LTD., Plaintiff–Appellant, v. CHEYNE SPECIALTY FINANCE FUND L.P., et al., Defendants–Respondents.
Barry L. Goldin, New York, for appellant. Willkie Farr & Gallagher, LLP, New York (Jefrey B. Korn of counsel), for respondents.
Barry L. Goldin, New York, for appellant.
Willkie Farr & Gallagher, LLP, New York (Jefrey B. Korn of counsel), for respondents.
TOM, J.P., RICHTER, ANDRIAS, GESMER, SINGH, JJ.
Judgment, New York County (Shirley Werner Kornreich, J.), entered August 12, 2016, dismissing the complaint with prejudice as against defendant Cheyne Specialty Finance Fund General Partner and without prejudice as against defendant Cheyne Specialty Finance Fund, unanimously affirmed, without costs. Appeals from orders, same court and Justice, entered on or about August 10, 2016, and on or about July 22, 2016, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The record supports the court's determination that plaintiff's counsel failed to maintain an in-state office at the time he commenced this action, in violation of Judiciary Law § 470 (see e.g. Webb v. Greater N.Y. Auto. Dealers Assn., Inc., 93 A.D.3d 561, 940 N.Y.S.2d 608 [1st Dept.2012] ). Plaintiff's subsequent retention of co-counsel with an in-state office did not cure the violation, since the commencement of the action in violation of Judiciary Law § 470 was a nullity ( Neal v. Energy Transp. Group, 296 A.D.2d 339, 744 N.Y.S.2d 672 [1st Dept.2002] ). The court properly permitted defendants to make a second dispositive motion to dismiss since at the time of the first motion defendants had no reason to suspect that plaintiff's counsel may have violated Judiciary Law § 470 (see e.g.
Lemberg v. Blair Communications, 258 A.D.2d 291, 685 N.Y.S.2d 435 [1st Dept. 1999] ; see also generally Barbarito v. Zahavi, 107 A.D.3d 416, 420, 968 N.Y.S.2d 422 [1st Dept.2013] ; Ultramar Energy v. Chase Manhattan Bank, 191 A.D.2d 86, 599 N.Y.S.2d 816 [1st Dept.1993] ).
Defendants did not waive their right to argue that plaintiff's counsel violated Judiciary Law § 470 (see CPLR 3211[e] ). Contrary to plaintiff's contention, the court properly considered evidence submitted in defendants' reply papers that was responsive to plaintiff's claims in opposition to defendants' motion. Contrary to defendants' further contention, the court was not bound by the holding of a federal district court at the time of the commencement of this action that Judiciary Law § 470 was unconstitutional (see generally Sue/Perior Concrete & Paving, Inc. v. Lewiston Golf Course Corp., 24 N.Y.3d 538, 551, 2 N.Y.S.3d 15, 25 N.E.3d 928 [2014] ).
The court correctly dismissed the breach of trust claim as duplicative of the breach of fiduciary duty claim, and correctly dismissed the action with prejudice as against Cheyne Specialty Finance Fund General Partner (GP), since the complaint contains no factual allegations of wrongdoing against GP.
We have considered plaintiff's remaining arguments and find them unavailing.