Schoenefeld v. New York

• Decision Date: 07 September 2011
• Docket Number: No. 1:09–CV–00504 (LEK/RFT).,1:09–CV–00504 (LEK/RFT).
• Parties: Ekaterina SCHOENEFELD, Plaintiff, v. State of NEW YORK, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

907 F.Supp.2d 252

Ekaterina SCHOENEFELD, Plaintiff,

v.State of NEW YORK, et al., Defendants.

No. 1:09–CV–00504 (LEK/RFT).

United States District Court,

N.D. New York.

Sept. 7, 2011.

Held Unconstitutional

N.Y.McKinney's Judiciary Law § 470.

Ekaterina Schoenefeld, Schoenefeld Law Firm LLC, Princeton, NJ, pro se.

Christina L. Roberts–Ryba, Nixon, Peabody Law Firm, Kevin P. Hickey, New York State Attorney General, Albany, NY, for Defendants.

MEMORANDUM–DECISION and ORDER

LAWRENCE E. KAHN, District Judge.

I. INTRODUCTION

Plaintiff Ekaterina Schoenefeld (“Plaintiff”) filed this action for equitable relief pursuant to 42 U.S.C. § 1983 in the Southern District of New York on April 1, 2008. See Complaint (Dkt. No. 1) ¶ 2. Plaintiff alleges that New York Judiciary Law Section 470 (McKinney 2010) (“Section 470”) is unconstitutional on its face and as applied because it violates Article IV, section 2 of the United States Constitution (“Privileges and Immunities Clause”); the Equal Protection Clause of the Fourteenth Amendment; and Article I, section 8 of the Constitution (“Commerce Clause”). See Amended Complaint (Dkt. No. 4) ¶¶ 2, 23, 27, 29. Plaintiff brought this action naming thirty-seven Defendants, including the State of New York (“New York”); Andrew M. Cuomo in his official capacity as Attorney General for the State of New York; the New York Supreme Court, Appellate Division, Third Judicial Department (“Appellate Division, Third Department”); all Justices of the Appellate Division, Third Department; Michael J. Novack in his official capacity as Clerk of the Appellate Division, Third Department; the Committee on Professional Standards of New York Supreme Court, Appellate Division (“Committee on Professional Standards”); the Third Judicial Department and its Members; and John Stevens in his official capacity as Chairman of the Committee on Professional Standards (collectively, “Defendants”). Am. Compl. ¶ 7.

On April 16, 2009, 2009 WL 1069159, Defendants' Motion to transfer this action to the Northern District of New York under 28 U.S.C. § 1404(a) was granted for the convenience of Defendants. See Memorandum and Order (Dkt. No. 17). On June 16, 2009, Defendants filed a Motion to dismiss for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction because the claims were not ripe for review. See Memorandum of Law in Support of Motion to Dismiss (Dkt. No. 20–2) (“Mem. Supp. Mot. to Dismiss”). On February 8, 2010, 2010 WL 502758, the Court found that Plaintiff's claims were ripe but granted the Motion to dismiss with respect to Defendants New York, Appellate Division, Third Department; and Committee on Professional Standards; and dismissed in their entirety Plaintiff's claims against all Defendants under the Fourteenth Amendment and the Commerce Clause. Memorandum–Decision and Order (Dkt. No. 32) (“February 2010 Order”) at 12. The February 2010 Order did, however, permit Plaintiff to proceed with her claims against the remaining Defendants under the Privileges and Immunities Clause. Id.

Now before the Court are Defendants' and Plaintiff's Motions for summary judgment, which were both filed on December 15, 2010. Dkt. Nos. 62, 64. On January 18, 2011, Defendants filed a Response to Plaintiff's motion for summary judgment (“Defendants' Response”); and Plaintiff filed a Response to Defendants' motion for summary judgment (“Plaintiff's Response”).Dkt. Nos. 65, 70. On January 24, 2011, both Defendants and Plaintiff filed Reply Memoranda. Dkt. Nos. 72, 73 (“Defendants' Reply” and “Plaintiff's Reply,” respectively). For the reasons discussed below, Defendants' Motion for summary judgment is denied, and Plaintiff's Motion for summary judgment is granted.

II. BACKGROUNDA. Plaintiff's Claims and the Present Section 470

Plaintiff is a 2005 graduate of Rutgers University School of Law–Newark and is licensed to practice law in the states of New York, New Jersey, and California. See Am. Compl. ¶ 5; Defendants' Statement of Material Facts (Dkt. No. 62–1) (“Def. Stat. Mat. Facts”) ¶ 1. Plaintiff maintains her residence and law office in Princeton, New Jersey, which is an hour-long commute from the New York state line and New York City. Id. ¶ 6; Def. Stat. Mat. Facts ¶ 1. Plaintiff states that while attending a continuing legal education course, entitled Starting Your Own Practice, she learned that under Section 470, nonresident attorneys may not practice law in New York without maintaining an office located in New York. See Am. Compl. ¶ 17.

Section 470, which does not apply to attorneys who reside in New York, provides: “A person, regularly admitted to practice as an attorney and counselor, 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.” N.Y. Judiciary Law § 470 (McKinney 2010). Section 470 continues to be enforced by Defendants and by New York courts. See Plaintiff's Statement of Material Facts (Dkt. No. 64–1) (“Pl. Stat. Mat. Facts”) ¶ 8; Schoenefeld Decl. (Dkt. No. 64–3), Exs. E, G, H (Def. Resp. Req. Admis. ¶¶ 3, 7). Plaintiff is unable to practice law in New York, despite her full compliance with all requirements applicable to attorneys residing in New York, because she does not maintain an office in New York. See Am. Compl. ¶ 19; Def. Stat. Mat. Facts ¶ 1; Answer (Dkt. No. 33) ¶ 4. Section 470 has not yet been enforced against Plaintiff; however, Plaintiff claims that because she has no office in New York, the law has forced her to refrain from representing clients when doing so would require her to practice in New York courts. See Plaintiff's Memorandum of law in support of Motion for Summary Judgment (Dkt. No. 64–2) (“Pl. Mem. Supp. S. J.”) at 5.

B. Legislative History of Section 470

Chapter 43, the original version of Section 470, was first enacted on March 22, 1862. Schoenefeld Decl., Ex. F. At that time, state law provided that only New York residents could be admitted to practice law in New York.¹ Schoenefeld Decl., Ex. L. Prior to the enactment of Chapter 43, this rule applied to New York attorneys who moved to another state; thus, a New York attorney who moved outside of the state automatically lost the right to practice law in New York. Id. Chapter 43 provided a limited exception to the rule that only New York residents could be admitted to practice law in New York:

Any regularly admitted and licensed attorney of ... this State, and whose only office for the transaction of law business is within this state, may practice as such attorney in any of the courts of this State notwithstanding he may reside in a state adjoining the state of New York, provided that this act shall extend only to attorneys who have been ... admitted to practice in the Courts of this State, and who reside out of the State of New York, and that service of papers which might according to the practice of the Courts of this State, be made upon said attorney at his residence, if the same were within the state of New York, shall be sufficient if made upon him ... directed to said attorney at his office ... and such service shall be equivalent to personal service at the office of such attorney.

Id. Thus, Chapter 43 specifically allowed attorneys who were already licensed in New York to continue to practice in New York courts, so long as their only office for the practice of law was located in New York. Id.

In 1866, Chapter 43 was reenacted as Chapter 173 to eliminate the requirement that a nonresident attorney's only office be in New York for that attorney to practice law in-state. Schoenefeld Decl., Ex. F (L. 1866, ch. 175, § 1 (6 Edm., 706)). Chapter 173 stated:

Any regularly admitted or licensed attorney or counselor of ... this state, and whose office for the transaction of law business is within this state, may practice as such attorney or counselor in any of the courts of this state, notwithstanding he may reside in a state adjoining the State of New York; provided, that service of papers, which might ... be made upon him by depositing the same in the post-office ... directed to said attorney at his office ... and such service shall be equivalent to personal service at the office of such attorney.

Id. In 1877, Chapter 173 was again reenacted as § 60 of the New Code of Civil Procedure, which provided that:

A person, regularly admitted to practice as attorney and counselor, in the courts of record of the State, whose office for the transaction of law business is within the State, may practice as such attorney or counselor, although he resides in an adjoining state. But service of a paper, which might be made upon him at his residence, if he was a resident of the State, may be made upon him, by depositing the paper in the city or town where his office is located, properly inclosed [sic] in a postpaid wrapper, directed to him at his office. A service thus made is equivalent to personal service upon him.

Id. (Code Civ. P., § 60 (1877)).

The statute was later divided in 1908, by the Board of Statutory Compilation, and the first sentence of § 60 became Section 470, while the balance of the statute was retained in the Code of Civil Procedure. See Board of Statutory Consolidation, cmt. 29 to § 60 (1908). Section 470 was officially enacted in 1909, later reenacted in 1945, and remains in the same form today: “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.” Attorneys who reside in New York, by contrast, are permitted under New York law to have only offices located outside the state of New York if they so choose, or to maintain no office outside of the state in which they reside.

III. STANDARD OF REVIEW

Summary judgment is granted if “the...