Early Infighting in a Legal Malpractice Case

When parties represent themselves, a skewing of the normal motion practice is often seen.  In general, motions over service of process, and whether a party may practice law in New York are rarely seen.  Here, in Reem Contr. v Altschul & Altschul  2014 NY Slip Op 03638  Decided on May 20, 2014  Appellate Division, First Department we see squabbles over whether plaintiff's attorney may practice law, and whether defendants were served with the summons.

"Contrary to defendants' contention, plaintiffs' counsel, a New Jersey firm, need not obtain authorization to do business in New York pursuant to § 1301(a), § 1528 or other provisions of the Business Corporation Law to commence an action in New York courts. While any purported noncompliance with those provisions might have other consequences, it does not affect the ability of the firm's attorneys to practice in New York and thus to commence these proceedings representatively. Similarly, we reject defendant's contention that plaintiffs' counsel, in seeking attorneys' fees, impermissibly maintained the action on its own behalf, rather than in a representative capacity (see Business Corporation Law § 1312). The action was brought in plaintiffs' name only, and any award of attorneys' fees depends on the resolution of the underlying legal malpractice cause of action brought in plaintiffs' name.

Plaintiffs' affidavits of service on all defendants constitute prima facie evidence of proper service (Chinese Consol. Benevolent Assn. v Tsang, 254 AD2d 222, 223 [1st Dept 1998]). Defendant Mark Altschul's conclusory denial that he was served as alleged in the affidavit of service does not suffice to raise an issue of fact to be resolved at a traverse hearing (see e.g. id.; Public Adm'r of County of N.Y. v Markowitz, 163 AD2d 100 [1st Dept 1990]).

To the extent defendants argue that service was incomplete due to the belated filing of proof of service, the argument is unavailing, since failure to file proof of service within the 20-day time period for answering the complaint is not a jurisdictional defect, but a "mere irregularity," and, as plaintiffs acknowledge, service is deemed complete only 10 days after the [*2]late filing (see Weininger v Sassower, 204 AD2d 715, 716 [2d Dept 1994]; see also Nardi v Hirsh, 245 AD2d 205 [1st Dept 1997]). Any purported defects in the form of the affidavit of service, including the sufficiency of the signature, are mere irregularities, not jurisdictional defects that would warrant dismissal of the complaint (see Bell v Bell, Kalnick, Klee & Green, 246 AD2d 442, 443 [1st Dept 1998]).

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