text:
    In the Matter of Warren L. Boulanger, a Justice of the Cold Spring Village Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued December 14, 1983;
    decided January 17, 1984

      POINTS OF COUNSEL

      Edward Thomas McCormack for petitioner.
    The sanction of removal is too harsh.

      Robert H. Tembeckjian, Gerald Stern and Robert Straus for respondent.
    Petitioner has engaged in egregious misconduct which renders him unfit to serve as a Judge. (Matter of Steinberg, 51 NY2d 74; Matter of Vaccaro, 42 NY2d [a]; Matter of Pfingst, 33 NY2d [a]; Matter of Schrager, 86 AD2d 229; Matter of Rosenberg, 86 AD2d 217; Elco Shoe Mfrs. v Sisk, 260 NY 100; Jewett v Commonwealth Bond Corp., 241 App Div 131; Polley v Daniels, 238 App Div 181; McMahon v Pfister, 39 AD2d 691; Radin v Opperman, 64 AD2d 820.)
   OPINION OF THE COURT

Per Curiam.

The State Commission on Judicial Conduct has determined that petitioner, a Justice of the Cold Spring Village Court, Putnam County, should be removed from office. Upon review of the record, this court agrees that this sanction is appropriate.

The credible evidence indicates that petitioner received a general power of attorney from his client, Fred H. Dunseith, in January, 1975. Petitioner used this to transfer assets totaling in value $135,000 from Dunseith to himself without informing Dunseith of many of the transactions during the period from 1975 to 1977. In furtherance of his objective to acquire Dunseith’s assets, petitioner falsely reported to a savings bank that Mr. Dunseith had died.

Dunseith actually died in 1977. Petitioner, who was Dunseith’s executor, failed to file gift tax returns on behalf of the estate until 1981, after the Internal Revenue Service had commenced an investigation. As a result of the late filing, the estate was assessed penalties. In 1982, petitioner was convicted in the United States District Court of three counts of felonious income tax evasion by means of filing false and fraudulent income tax returns, and was sentenced to a term of imprisonment and probation. These charges generally arose out of petitioner’s receipt of Dunseith’s assets from 1975 to 1977. Additionally, petitioner concealed his own property and assets in a financial affidavit that he filed in a divorce action brought against him.

In this proceeding to review the commission’s findings of fact, legal rulings, and determination of sanction (see NY Const, art VI, § 22, subds a, d; Judiciary Law, § 44, subd 9), petitioner claims that the transfers of Dunseith’s property were gifts. He also asserts that the failure to file timely gift tax returns was the result of two factors. In some years, petitioner personally prepared and filed income tax returns for the estate, and he claims that he did not know that gift tax returns were also necessary. As to the other years, petitioner lays the blame on the negligence of the accountant whom he had hired to prepare the estate’s tax returns. With respect to the conviction for Federal income tax evasion, petitioner maintains that he is innocent and notes that he is seeking a writ of error coram nobis.

This court finds incredible petitioner’s claim that Dunseith authorized the transfers of cash, stocks, and real estate. There was no corroboration of the claim that any gift was intended. Nor was there any witness to the signing of the general power of attorney. It is noted that Mr. Dunseith’s will contained no reference to petitioner as a beneficiary. Dunseith was a legally blind, partially deaf, 95-year-old man in a nursing home. Petitioner’s own testimony indicated that he questioned Dunseith’s competence to make such decisions.

Given that no gift tax returns were filed until after petitioner was under investigation by the IRS, it is questionable that the failure to file was negligent and not intentional. Even assuming that the failure to file was negligent, petitioner’s explanation is unacceptable. Petitioner should have sought legal advice if he was not familiar with the intricacies of tax law. Insofar as petitioner claims that the delay was caused by his accountant’s negligence, it suffices to note that the ultimate responsibility for timely filing accurate returns rested on petitioner, as the executor of Dunseith’s estate.

Petitioner, as attorney for Dunseith, owed his client a fiduciary duty which was seriously breached by the numerous deliberate deceptions in handling Dunseith’s financial affairs. The admitted allegations, regarding the false report of Dunseith’s death in order to avoid paying interest penalties and the filing of a false financial affidavit in a divorce proceeding in order to conceal assets from his former wife, alone constitute conduct in violation of Canons 1 and 2 (A) of the Code of Judicial Conduct and sections 100.1 and 100.2 (a) of the Rules of the Chief Administrator of the Courts Governing Judicial Conduct (22 NYCRR 100.1,100.2 [a]). The gravity of his misconduct is such that he should be removed from office.

We need not consider his actual conviction, which is pending collateral review, as a factor supporting removal because the other matters are sufficient to warrant that sanction. Petitioner has acted in an unprincipled manner which has brought disrepute to the judiciary. Petitioner’s abandonment of his fiduciary duties to his client and his other unethical and unlawful conduct cannot be tolerated, notwithstanding that all of the wrongdoings related to conduct outside his judicial office (see Matter of Steinberg, 51 NY2d 74, 83-84).

Accordingly, the determined sanction of removal should be accepted, without costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Determined sanction accepted, without costs, and Warren L. Boulanger is removed from the office of Justice of the Cold Spring Village Court.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Vincent T. Cerbone, a Justice of the Mount Kisco Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued December 13, 1983;
    decided January 17, 1984

      POINTS OF COUNSEL

      B. Anthony Morosco for petitioner.
    I. The allegations in the formal written complaint have not been sustained by a quantum of evidence. II. The commission utilized the incorrect standard of proof. (Addington v Texas, 441 US 418; Woodby v Immigration Serv., 385 US 276; Chaunt v United States, 364 US 350; Schneiderman v United States, 320 US 118; Santosky v Kramer, 455 US 745; Ross v Food Specialities, 6 NY2d 336; Amend v Hurley, 293 NY 587; Porter v Commercial Cas. Ins. Co., 292 NY 176; Commissioner of Public Welfare v Ryan, 288 App Div 607; Matter of Findlay, 253 NY 1.) III. The complaint lacks specificity. IV. The proceeding before the commission constitutes double jeopardy. (Benton v Maryland, 395 US 784; United States v Furlong, 5 Wheat [18 US] 184; Green v United States, 355 US 184; Matter of Barnes v Tofany, 27 NY2d 74; Helvering v Mitchell, 303 US 391; One Lot Emerald Cut Stones v United States, 409 US 232; Coffey v United States, 116 US 436; United States v La Franca, 282 US 568; Ex parte Wall, 107 US 265.) V. Judge Cerbone’s conduct was justified. (Matter of Fuhrer v Hynes, 72 AD2d 813.) VI. In any event, the sanction of removal is excessive. (Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465.)

      Gerald Stern and Alan W. Friedberg for respondent.
    I. Petitioner’s misconduct was clearly established and warrants his removal from office. (Matter of Steinberg, 51 NY2d 74; Matter of Kane, 50 NY2d 360; Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465; Matter of Waltemade, 37 NY2d [a]; Matter of Shilling, 51 NY2d 397; Matter of Aldrich v State Comm. on Judicial Conduct, 58 NY2d 279.) II. Petitioner’s arguments are without merit. (Matter of Vaccaro, 42 NY2d [a]; Matter of Richter, 42 NY2d [aa]; Matter of MacDowell, 57 AD2d 169; Matter of Filipowicz, 54 AD2d 348; Matter of Herrmann, 175 App Div 310; Matter of Farrell, 237 App Div 678; Matter of Mogel, 18 AD2d 203; Matter of Feola, 37 AD2d 789; Matter of Gun

      derson, 75 AD2d 706; Matter of Martin v Ambach, 104 Misc 2d 938, 85 AD2d 869.)
   OPINION OF THE COURT

Per Curiam.

This is a review of a determination that petitioner, a Town Court Justice in the Town of Mount Kisco, engaged in such misconduct that he should be removed from office. The members of this court agree that petitioner should no longer be allowed to serve in a judicial position.

In the early evening of October 25, 1981, petitioner entered a Mount Kisco tavern for a meeting with the business’s owner, who was one of petitioner’s legal clients. While he was in the bar, petitioner had a confrontation with some of the other patrons, primarily several black men. A heated exchange occurred, during which petitioner admittedly used abusive and profane language. Petitioner loudly proclaimed that he was a judge and announced what he would do if any of the black patrons appeared before him in court. The evidence, which includes testimony by a number of witnesses, establishes that petitioner embellished his threatening remarks with racial epithets. The record also shows that petitioner either struck or pushed one of the other customers. This incident did not end until after the police twice came to the tavern and, on the second occasion, petitioner left with his brother. There is no evidence or claim that petitioner was intoxicated at the time.

Petitioner proffers two grounds for justifying his conduct. First, he contends that he saw a drug transaction occur among the black men outside the bar and that he believed it necessary to remain inside so as to thwart any sales on the premises, which activity would have jeopardized his client’s liquor license. Even were this to be accepted as true, petitioner’s explanation does not excuse his behavior. Certainly, the same end could have been served by petitioner’s quietly remaining in the bar without swearing, yelling, or using racial slurs.

Petitioner’s other “justification” is that he felt that he could not leave because to do so would create the impression that judges can be intimidated. The judiciary has progressed beyond the stage where it is necessary to prove its fortitude by physical or verbal confrontation. Moreover, respect for the judiciary is better fostered by temperate conduct, not by hot-headed reactions to goading remarks in a bar.

Petitioner has also challenged the standard of proof — preponderance of the evidence — employed in judicial disciplinary proceedings (22 NYCRR 7000.6 [i] [1]), urging that the appropriate standard is clear and convincing evidence. It is unnecessary to determine whether the higher standard should be applied for we conclude in any event, as did the referee who initially heard this matter, that the charges are supported by clear and convincing evidence (see Matter of Steinberg, 51 NY2d 74, 82, n 3).

Petitioner’s other arguments have been considered and are found to be without merit. Petitioner’s demonstration has rendered him unfit to serve the public trust as a judge.

Accordingly, the determined sanction of removal should be accepted, without costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Determined sanction accepted, without costs, and Vincent T. Cerbone is removed from the office of Justice of the Mount Kisco Town Court.


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Ralph Lombardo, Appellant.
    Argued January 9, 1984;
    decided February 21, 1984

      POINTS OF COUNSEL

      Gustave H. Newman and Barbara L. Hartung for appellant.
    I. The trial court erred in failing to question a deliberating juror and in failing to grant defendant’s motion for a mistrial. (People v Ryan, 19 NY2d 100; People v Meyer, 78 AD2d 662; People v Sellers, 73 AD2d 697; People v Argibay, 57 AD2d 520, 45 NY2d 45, cert den sub nom. Hahn-Di Guiseppe v New York, 439 US 930; United States v Evans, 635 F2d 1124; United States v Phillips, 664 F2d 971; United States v Kopituk, 690 F2d 1289; United States v Hillard, 701 F2d 1052; United States v Lamb, 529 F2d 1153; United States v Floyd, 496 F2d 982, cert den sub nom. Miller v United States, 419 US 1069.) II. The trial court’s failure to hold a hearing on the motion to disqualify defendant’s attorney resulted in a denial of defendant’s right to the effective assistance of counsel. (People v Hall, 46 NY2d 873, 444 US 848; People v Hallett, 71 AD2d 815; People v Gomberg, 38 NY2d 307; People v Macerola, 47 NY2d 257; People v Baffi, 49 NY2d 820; Salomon v La Vallee, 575 F2d 1051; United States v Alberti, 470 F2d 878, 411 US 919; United States v Dickson, 508 F Supp 732; United States ex rel. Williamson v La Vallee, 282 F Supp 968; United States v Armedo-Sarmiento, 524 F2d 591.) III. Section 190.42 of the Penal Law is void for vagueness, violating appellant’s due process guarantees under the Constitution. (People v Ardito, 86 AD2d 144, 58 NY2d 842; People v Di Raffaele, 100 Misc 2d 634, 79 AD2d 686, 55 NY2d 234; Rose v Locke, 423 US 48; People v Pagnotta, 25 NY2d 333; Papachristou v City of Jacksonville, 405 US 156; People v Illardo, 48 NY2d 408; People v Cruz, 48 NY2d 419.) IV. The evidence was legally insufficient to convict defendant of the crime of criminal usury in the first degree.

      Denis Dillon, District Attorney (Lawrence J. Schwarz and Anthony J. Gírese of counsel), for respondent.
    I. Section 190.42 of the Penal Law does not violate defendant’s right to due process. (Rose v Locke, 423 US 48; United States v Petrillo, 332 US 1; People v Cruz, 48 NY2d 419; People v Smith, 44 NY2d 613; People v Di Raffaele, 100 Misc 2d 634, 79 AD2d 686, 55 NY2d 234; United States v Swiderski, 593 F2d 1246, 441 US 933; United States v Condolon, 600 F2d 7; United States v Bronston, 491 F Supp 593, 658 F2d 920, 456 US 915; United States v Valenzuela, 596 F2d 1361, 444 US 865.) II. Defendant’s guilt of criminal usury in the first degree was proved beyond a reasonable doubt. (Noto v United States, 367 US 290; Jackson v Virginia, 443 US 307; People v Piazza, 48 NY2d 151; People v Henderson, 41 NY2d 233; People v Benzinger, 36 NY2d 29; People v Panarella, 66 AD2d 968; People v Leach, 57 AD2d 332, 46 NY2d 821; Matter of Lefkowitz v Burden, 22 AD2d 881; People v Di Raffaele, 100 Misc 2d 634, 79 AD2d 686, 55 NY2d 234.) III. Defendant was not denied effective assistance of counsel. (People v Crump, 53 NY2d 824; People v Baffi, 49 NY2d 820; People v Macerola, 47 NY2d 257; People v McCullars, 89 AD2d 669; People v Frisbie, 70 AD2d 1053; People v Little, 44 AD2d 873; Theodore v State of New Hampshire, 614 F2d 817; United States v Donatelli, 484 F2d 505; United States v Alberti, 470 F2d 878.) IV. The trial court did not abuse its discretion in not questioning a juror and denying defendant’s mistrial motion. (People v Lynch, 23 NY2d 262; People v Meyer, 78 AD2d 662; People v Spinks, 37 AD2d 424; Matter of Enright v Siedlecki, 89 AD2d 735; Matter of Huntzinger v Siedlecki, 89 AD2d 736; People v Phillips, 87 Misc 2d 613; People v Gonzales, 56 NY2d 1001; People v Fuller, 57 NY2d 152; People v Satloff, 56 NY2d 745; People v Argibay, 45 NY2d 45.)
   OPINION OF THE COURT

Jones, J.

Use of the terms “scheme or business of making or collecting usurious loans” in section 190.42 of the Penal Law does not render the statute unconstitutional under the principle of void-for-vagueness, and the evidence in this record was sufficient to sustain defendant’s conviction under the statute. Receipt of a note from one juror that she could not “render a fair and just verdict in accordance with the Court’s instruction”, without more, did not mandate declaration of a mistrial. Finally, although it was error for the trial court not to have satisfied itself by inquiry of defendant that he understood the risks of a potential conflict of interest on the part of his counsel which the prosecution called to the attention of the court before trial, defendant is not entitled to a reversal of his conviction in view of his failure to demonstrate that there existed a conflict of interest or at least the significant possibility thereof in the circumstances of the attorney’s conduct of his defense.

Defendant was indicted for the crimes of criminal usury in the first degree (Penal Law, § 190.42 — one count) and criminal usury in the second degree (Penal Law, § 190.40 — four counts) arising out of a series of alleged usurious loans to one George Morgan in connection with his operation of the Italian-American Club of Franklin Square, County of Nassau.

At trial evidence was introduced to establish defendant’s participation in four lending transactions: (1) on or about March 1, 1979 Morgan assumed a loan from defendant for some $4,000 for approximately 52 weeks with interest at 104% per annum; (2) at or about the same time Morgan assumed another loan from defendant for approximately $2,000 for about 52 weeks with interest at 182% per annum; (3) on or about August 1, 1979 Morgan obtained another loan from defendant for approximately $1,500 for approximately 32 weeks with interest at 156% per annum; and (4) on or about November 1, 1979 Morgan obtained a fourth loan from defendant for approximately $5,000 for about 19 weeks with interest at 104% per annum. The jury found defendant guilty on all five counts charged. On appeal from the ensuing judgment of conviction the Appellate Division unanimously affirmed, without opinion. Defendant’s appeal is now before us by permission of a Judge of our court.

Defendant urges four grounds for reversal; two relate to his conviction on all five counts and two relate only to his conviction of criminal usury in the first degree.

Prior to trial the prosecution moved to disqualify defendant’s trial counsel on the ground that his prior representation of George Morgan, who would be the People’s chief witness, created an impermissible conflict of interest. The attorney had represented Morgan in the period between September, 1979 and early 1980 on various criminal charges. In January, 1980, without the knowledge of the attorney, Morgan agreed to co-operate with the law enforcement authorities in their investigation of defendant and thereafter became an undisclosed informer against him. Defendant’s attorney opposed the motion for disqualification, urging that there existed no disqualifying conflict of interest. He agreed, however, that a hearing should be held pursuant to our decision in People v Gomberg (38 NY2d 307) “to determine whether the defendant will consent to any alleged conflict of interest, whether he insists upon my representation of him, and whether he will waive any Sixth Amendment claims he might have.” Without hearing or explanation the trial court denied the prosecution’s motion, and the attorney continued as defendant’s trial counsel. We agree with defendant’s appellate counsel that it was error on the part of the trial court not to have inquired of defendant to ascertain, on the record, whether he had an awareness of the potential risks involved in his continued representation by the attorney and had knowingly chosen to continue such representation. Although not presenting the circumstance of a joint trial of codefendants represented by the same counsel, this was an instance in which the principles of People v Gomberg (38 NY2d 307, supra) and People v Macerola (47 NY2d 257) are applicable. There was a potential conflict of interest and that fact was brought to the attention of the trial court at the outset of the trial (contrast People v Alicea, 61 NY2d 23).

A more troublesome question might be whether defendant has established his right to a reversal of his conviction in consequence of the error of the trial court. We conclude, however, that defendant has not demonstrated “that a conflict of interest, or at least the significant possibility thereof, did exist” in the circumstances disclosed in the record in this case, and in the absence of such demonstration defendant is not entitled to a reversal of his conviction (People v Macerola, 47 NY2d 257, 264, supra). Defendant’s attorney concluded, whether rightly or wrongly, that he was released from any continuing obligation of confidentiality to Morgan in consequence of Morgan’s waiver of the attorney-client privilege by his unrestricted co-operation with the prosecution. This conclusion eliminated any significant possibility that the conduct of the defense would be affected by the attorney’s prior representation of Morgan, and scrutiny of the attorney’s searching cross-examination of Morgan on defendant’s trial confirms that the attorney conducted the defense on the operational premise that he no longer owed any professional obligation to Morgan. Accordingly, although there was error on the part of the trial court, defendant is not entitled to a reversal of his convictions in consequence thereof.

Defendant’s second contention with respect to all counts of his conviction arises out of a note sent by juror number 11 to the Trial Judge during the course of the jury deliberations. The note read “Your Honor, at this point of deliberation, I find that I cannot render a fair and a just verdict in accordance with the Court’s instruction”. After the court informed the prosecution and the defense of the fact and content of the note, counsel for the People suggested that the entire jury be recalled and recharged, or in the alternative that the court explore the problem further with juror number 11. Defense counsel did not join in either suggestion, but instead pressed a motion for a mistrial, stating that if the juror were discharged the defense would not consent to the substitution of an alternate juror (CPL 270.35). The trial court denied the motion for a mistrial and recalled and, after disclosing the content of the note, recharged the jury. Following further deliberations the jury found defendant guilty on all five counts charged.

Defendant’s contention before us that the trial court should have questioned juror number 11 before proceeding was not preserved for our review in view of his counsel’s failure, at the time, to request such relief or to join in the prosecutor’s suggestion. Thus, the only asserted error preserved for appellate review was the denial of the motion for a mistrial. In the circumstances disclosed in this record, it was not error to have denied that motion. Inquiry of the juror might have elicited information warranting a mistrial in the absence of defendant’s consent to replacement of the juror (CPL 270.35). As it was, on being reinstructed juror number 11 continued to participate in the jury deliberations and joined in the unanimous verdict of guilty. The mere delivery of the note, without more, which was the predicate for defense counsel’s motion, did not mandate the declaration of a mistrial.

With respect to defendant’s conviction of criminal usury in the first degree under section 190.42 of the Penal Law,* defendant advances two contentions before us, first, that the statute is unconstitutional, and, second, that in any event the evidence was insufficient to sustain his conviction. We reject both contentions.

Defendant’s contention as to unconstitutionality is based on his argument that use of the words “scheme or business of making or collecting usurious loans” renders the statute void for vagueness, thus denying defendant his constitutional right to due process. The terms “scheme or business” are not impermissibly vague. Substantive meaning can readily be imported from the dictionary meaning of the terms in common usage. “Scheme” may be defined to mean, “a design or plan formed to accomplish some purpose” and “business” may be defined to mean, “commercial activity engaged in for gain” (Black’s Law Dictionary [5th ed], pp 1206, 179). (Cf. United States v Batson, 706 F2d 657, 680 [“scheme” not unconstitutionally vague as used in 7 CFR 722.817 (b) (1)]; United States v Kreimer, 609 F2d 126,128 [defining “scheme” under US Code, tit 18, § 1341]; United States v Van Buren, 593 F2d 125, 126 [“business” as used in US Code, tit 18, § 922, subd (a), par (1) not void for vagueness].) In the context of this statute it is clear that what is denoted is a series of transactions, multiple as to loans if not borrowers, which are usurious and are made by the same person under such circumstances that they can factually be found to be interrelated and to constitute parts of an integrated single operation. What evidence will suffice to meet this definition will necessarily depend on the circumstances of each case.

Defendant’s assertion that the evidence in the record in this case was insufficient to satisfy the statutory definition must be rejected. Here, there was evidence that, in order to provide the financial resources to ensure the continued operation of the Italian-American Club (in which defendant had a substantial economic interest), he made two loans to one individual followed by two more loans to the same individual for his personal use over a period of some eight months, all at usurious rates of interest, and made collections of such interest on all four loans over a period of some 12 months. The jury was warranted under the instructions of the trial court, to which no exception was taken, to conclude that such conduct constituted a “scheme or business of making or collecting usurious loans.”

For the reasons stated, the order of the Appellate Division affirming defendant’s conviction on all five counts should be affirmed.

Chief Judge Cooke and Judges Jasen, Wachtler, Meyer and Kaye concur; Judge Simons taking no part.

Order affirmed.

      . When individually polled as to the verdict of guilty on the charge of criminal usury in the first degree, juror number 11 initially said, “No”, then immediately said, “Yes”, with no intervening inquiry. When the court instructed the clerk again to inquire as to whether she had found defendant guilty on this count the juror again said, “Yes”. No protest or request for relief was made by defense counsel.

      . CPL 190.42 provides:
      “§190.42 Criminal usury in the first degree.
      “A person is guilty of criminal usury in the first degree when, not being authorized or permitted by law to do so, he knowingly charges, takes or receives any money or other property as interest on the loan or forbearance of any money or other property, at a rate exceeding twenty-five per centum per annum or the equivalent rate for a longer or shorter period and either the actor had previously been convicted of the crime of criminal usury or of the attempt to commit such crime, or the actor’s conduct was part of a scheme or business of making or collecting usurious loans.
      “Criminal usury in the first degree is a class C felony.”

      . Defendant does not challenge the sufficiency of the proof as to his convictions for criminal usury in the second degree.


author: Kaye, J.

text:
    Merritt Hill Vineyards Incorporated, Respondent-Appellant, v Windy Heights Vineyard, Inc., et al., Appellants-Respondents.
    Argued January 4, 1984;
    decided February 21, 1984

      POINTS OF COUNSEL

      Daniel R. Taylor for appellants-respondents.
    Special Term was correct in denying the summary judgment motion because there are triable questions of fact involving equitable estoppel and waiver of the time of essence provision, as well as defendants’ ability to perform. (Lusker v Tannen, 90 AD2d 118.)

      John R. Kennedy for respondent-appellant.
    I. The court below erred in granting summary judgment to defendants on plaintiffs’ second cause of action. (Foley v D’Agostino, 21 AD2d 60; Guggenheimer v Ginzburg, 43 NY2d 268; Fahey v County of Ontario, 44 NY2d 934; Bronson v Potsdam Urban Renewal Agency, 74 AD2d 967; De Forte v Allstate Ins. Co., 66 AD2d 1028.) II. Plaintiff is entitled to recover the money it expended as a direct consequence of, and incidental to the anticipated closing of, the stock purchase agreement. (Grace v Nappa, 46 NY2d 560; Colonial Diversified v Assured Holding Corp., 71 AD2d 1011; Mazzochetti v Cassarino, 49 AD2d 695; C. & C. Blaschka, Inc. v Frazer, 32 AD2d 774; Northridge v Moore, 118 NY 419; Leading Bldg. Corp. v Segrete, 60 AD2d 907.) III. Plaintiff is entitled to summary judgment on its second cause of action. In the alternative, plaintiff is entitled to the opportunity to establish, at trial, defendants’ breach of section 5 of the agreement. (Grace v Nappa, 46 NY2d 560.)
   OPINION OF THE COURT

Kaye, J.

In a contract for the sale of a controlling stock interest in a vineyard, the seller’s undertaking to produce a title insurance policy and mortgage confirmation at closing constituted a condition and not a promise, the breach of which excused the buyer’s performance and entitled it to the return of its deposit, but not to consequential damages. On the buyer’s motion for summary judgment seeking recovery of both the deposit and consequential damages, the Appellate Division correctly awarded summary judgment to the buyer for its deposit and to the seller dismissing the cause of action for consequential damages, even though the seller had not sought this relief by cross appeal.

In September, 1981, plaintiff, Merritt Hill Vineyards, entered into a written agreement with defendants, Windy Heights Vineyard and its sole shareholder Leon Taylor, to purchase a majority stock interest in respondents’ Yates County vineyard, and tendered a $15,000 deposit. The agreement provides that “[i]f the sale contemplated hereby does not close, Taylor shall retain the deposit as liquidated damages unless Taylor or Windy Heights failed to satisfy the conditions specified in Section 3 thereof.” Section 3, in turn, lists several “conditions precedent” to which the obligation of purchaser to pay the purchase price and to complete the purchase is subject. Among the conditions are that, by the time of the closing, Windy Heights shall have obtained a title insurance policy in a form satisfactory to Merritt Hill, and Windy Heights and Merritt Hill shall have received confirmation from the Farmers Home Administration that certain mortgages on the vineyard are in effect and that the proposed sale does not constitute a default.

In April, 1982, at the closing, plaintiff discovered that neither the policy nor the confirmation had been issued. Plaintiff thereupon refused to close and demanded return of its deposit. When defendants did not return the deposit, plaintiff instituted this action, asserting two causes of action, one for return of the deposit, and one for approximately $26,000 in consequential damages allegedly suffered as a result of defendants’ failure to perform.

Special Term denied plaintiff’s motion for summary judgment on both causes of action. The Appellate Division unanimously reversed Special Term’s order, granted plaintiff’s motion for summary judgment as to the cause of action for return of the deposit, and upon searching the record pursuant to CPLR 3212 (subd [b]), granted summary judgment in favor of defendants, dismissing plaintiff’s second cause of action for consequential damages. Both plaintiff and defendants appealed from that decision. This appeal raises two issues: first, whether as a matter of procedure, the Appellate Division could grant defendants summary judgment in the absence of a cross appeal, and second, if so, whether the Appellate Division, on the merits, correctly determined that the failure to supply the title insurance policy and mortgage confirmation obligated defendants to return plaintiff’s deposit but did not subject them to liability for consequential damages. Because the Appellate Division was correct both as to procedure and as to substance, we affirm.

I

As matter of procedure, the Appellate Division had the authority to grant summary judgment to defendants even in the absence of a cross appeal by them.

On plaintiff’s appeal from the denial of its motion for summary judgment, the Appellate Division was required to review the record to determine if any issues of fact existed as to either of plaintiff’s causes of action which required a trial. After searching the record, the Appellate Division determined that no issue of triable fact existed as to either cause of action, that plaintiff was entitled to judgment as a matter of law on the first, but that defendants were entitled to judgment as a matter of law on the second. CPLR 3212 (subd [b]), provides that “[i]f it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.” Pursuant to that rule, the Appellate Division properly entered summary judgment in favor of defendants and dismissed plaintiff’s second cause of action.

The question that next arises, however, is whether the Appellate Division could grant such relief in the absence of a cross appeal by defendants. While it is clear that this court could not grant summary judgment to a nonappealing party (Manes & Co. v Greenwood Mills, 53 NY2d 759, 761; Kelly’s Rental v City of New York, 44 NY2d 700, 702; New York Cent. R.R. Co. v Beacon Milling Co., 293 NY 218, 222), the Appellate Division is not so precluded. (Compare People v Consolidated Edison Co., 34 NY2d 646, 648, with City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 474.) This court has consistently upheld the Appellate Division’s authority to grant such relief pursuant to CPLR 3212 (subd [b]), even in the absence of an appeal by the nonmoving party. (Taterka v Nationwide Mut. Ins. Co., 91 AD2d 568, 569, affd 59 NY2d 743; Wehringer v Helmsley-Spear, Inc., 91 AD2d 585, affd 59 NY2d 688; Freidus v Todem Homes, 80 AD2d 575, 577, affd 56 NY2d 526; Howell v Davis, 58 AD2d 852, 853, affd 43 NY2d 874; Peoples Sav. Bank v County Dollar Corp., 43 AD2d 327, 334, affd 35 NY2d 836.)

Our recent decision in Hecht v City of New York (60 NY2d 57) does not require otherwise. In reviewing a judgment entered on a jury verdict against multiple parties, we held in Hecht that in the absence of express statutory authority the Appellate Division could not award affirmative relief to one of the multiple defendants who did not appeal. Here, the basis for the Appellate Division’s authority is CPLR 3212 (subd [b]).

Unlike this court, which has no original jurisdiction over motions and limited authority to review facts, the Appellate Division is a division of the Supreme Court (see NY Const, art VI, §§ 4, 7) and shares that court’s power to search the record and award summary judgment to a nonmoving party even where, as here, the nonmovant did not appeal. As was aptly explained in language adopted by this court in De Rosa v Slattery Contr. Co. (14 AD2d 278, 280-281, affd 12 NY2d 735):

“Rule 113 of the Rules of Civil Practice [the predecessor of CPLR 3212] provides judgment may be awarded to the opposing party even in the absence of a cross motion. Defendant Slattery did not ask for summary judgment either at Special Term or on appeal. It may be entitled to that relief, however, if it has a good defense to the action. The material facts are undisputed and mandate summary judgment dismissing the complaint * * *

“The Appellate Division, as the successor of the General Term, possesses all of the original jurisdiction of the Supreme Court, including the hearing and determination of motions * * * On an appeal from an intermediate order resulting in a reversal or modification, the Appellate Division generally entertains jurisdiction of and decides the underlying motion * * * The Court of Appeals, unlike the Appellate Division, has no original jurisdiction of a motion in an action or proceeding, and in the absence of an appeal therefrom it has held that it is without power to decide it.” (Citations omitted.)

Ever since its first appearance in this State by legislative enactment in 1921, summary judgment has offered an effective means for resolving disputes which present only questions of law. (See Paston, Summary Judgment in New York, chs III-VI; Kahn v City of New York, 37 AD2d 520, 521, affd 30 NY2d 690.) “[T]he practicalities of frivolous litigation and court congestion mandate a summary procedure upon the ascertaining that there is no cause of action.” (Senrow Concessions v Shelton Props., 10 NY2d 320, 326.) This is as true when the infirmity in a cause of action or defense is ascertained by the Appellate Division as it is when that decision is made at Special Term. Once it determined that no issue of material fact existed as to plaintiff’s second cause of action and that defendants were entitled to judgment as a matter of law, the Appellate Division had the power and responsibility to award summary judgment.

Thus, the order below was correct as a matter of procedure.

II

On the merits, plaintiff’s right to return of its deposit or to consequential damages depends upon whether the undertaking to produce the policy and mortgage confirmation is a promise or a condition.

A promise is “a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.” (Restatement, Contracts 2d, § 2, subd [1].) A condition, by comparison, is “an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.” (Restatement, Contracts 2d, § 224.) Here, the contract requirements of a title insurance policy and mortgage confirmation are expressed as conditions of plaintiff’s performance rather than as promises by defendants. The requirements are contained in a section of the agreement entitled “Conditions Precedent to Purchaser’s Obligation to Close,” which provides that plaintiff’s obligation to pay the purchase price and complete the purchase of the vineyard is “subject to” fulfillment of those requirements. No words of promise are employed. Defendants’ agreement to sell the stock of the vineyard, not those conditions, was the promise by defendants for which plaintiff’s promise to pay the purchase price was exchanged.

Defendants’ failure to fulfill the conditions of section 3 entitles plaintiff to a return of its deposit but not to consequential damages. While a contracting party’s failure to fulfill a condition excuses performance by the other party whose performance is so conditioned, it is not, without an independent promise to perform the condition, a breach of contract subjecting the nonfulfilling party to liability for damages (Restatement, Contracts 2d, § 225, subds [1], [3]; 3Á Corbin, Contracts, § 663; 5 Williston, Contracts [Jaeger-3d ed], § 665). This is in accord with the parties’ expressed intent, for section 1 of their agreement provides that if defendants fail to satisfy the conditions of section 3 plaintiff’s deposit will be returned. It does not provide for payment of damages.

On the merits of this case the Appellate Division thus correctly determined that plaintiff was entitled to the return of its deposit but not to consequential damages.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur; Judge Simons taking no part.

Order affirmed, without costs.

       Plaintiff contends that the failure to produce the policy and confirmation is also a breach of section 5, entitled “Representations, Warranties and Agreements.” A provision may be both a condition and a promise, if the parties additionally promise to perform a condition as part of their bargain. Such a promise is not present here. The only provision of section 5 conceivably relevant is that “Windy Heights has good and marketable title to the Property and all other properties and assets * * * as of December 31, 1980”. But this is quite different from the conditions of section 3 that a title insurance policy and mortgage confirmation be produced at the closing, which took place in April, 1982. Both the complaint and plaintiff’s affidavits are premised on nonperformance of section 3 of the agreement, not section 5.


author: Jones, J. Meyer, J.

text:
    Arvin B. Parker et al., Appellants, v Leo M. Mack, Respondent.
    Argued January 12, 1984;
    decided February 21, 1984

      POINTS OF COUNSEL

      Edmund J. Hoffmann, Jr., for appellants.
    CPLR 205 (subd [b]) authorizes the recommencement of plaintiffs’ personal injury action within six months of dismissal of the prior action." (George v Mt. Sinai Hosp., 47 NY2d 170; Gaines v City of New York, 215 NY 533; Lacks v Lacks, 41 NY2d 71; Bal v Court Employment Project, 73 AD2d 69; Carrick v Central Gen. Hosp., 51 NY2d 242; Aversano v Town of Brookhaven, 77 AD2d 641; Freccia v Carullo, 93 AD2d 281.)

      Donald L. Schoenwald for respondent.
    Defendant relies on the recent decision of Ciaschi v Town of Enfield (86 AD2d 903).
   OPINION OF THE COURT

Jones, J.

No action is commenced by the service of a summons alone which neither contains nor has attached to it a notice of the nature of the action and of the relief sought; accordingly, when such a summons is dismissed plaintiff may not avail himself of the six-month extension for commencement of a new action upon the same transaction or occurrence provided by CPLR 205 (subd [a]) following dismissal, on grounds other than voluntary discontinuance, dismissal for neglect to prosecute or a final judgment on the merits, of an action which has been timely commenced.

On October 17, 1981, three years lacking one day after plaintiff wife was involved in an accident with defendant while driving plaintiff husband’s car, two summonses, unaccompanied by complaints, were served on defendant. Despite the requirement of CPLR 305 (subd [b]), the papers served gave no notice either of the nature of the action or of the relief sought, and none was attached. When plaintiffs subsequently forwarded complaints to defendant’s counsel, they were returned and defendant moved to dismiss the actions on account of the insufficiency of the summonses.

Plaintiffs did not oppose the motion to dismiss, but, because more than three years had then elapsed since the auto accident of October 18, 1978, cross-moved for inclusion in the order of a provision reciting that they would have six months thereafter, under CPLR 205 (subd [a]), within which to commence another action.

Supreme Court granted the motion to dismiss but included in the order the recital requested by plaintiffs. In so doing, it concluded that the absence from the summonses of the CPLR 305 (subd [b])-mandated notice was not a jurisdictional defect and had not prevented actions from being commenced by the service of those papers.

On appeal by defendant from so much of the order as authorized the commencement of a new action within six months, the Appellate Division modified by reversing the provision of the order that had granted plaintiffs’ cross motion, holding that service of a summons, unaccompanied by a complaint and without the notice required by CPLR 305 (subd [b]), did not confer jurisdiction over defendant or constitute the timely commencement of an action, and that as a consequence the six-month extension created by CPLR 205 (subd [a]) was unavailable. Plaintiffs have appealed as of right. We affirm the order of the Appellate Division.

Prerequisite to the availability of the benefits of CPLR 205 (subd [a]) an earlier action must have been commenced, and timely so. CPLR 304 provides that an action “is commenced” and jurisdiction acquired by service of a summons, and CPLR 305 (subd [b]) mandates that if a complaint does not accompany it, the summons shall have the described notice on or attached to it. The language of the latter section is imperative, and the statutory dictates are clear — what is required for the commencement of an action is the proper service of a summons, and the summons, when unaccompanied by a complaint, must itself or by an attachment furnish to the defendant what has been described by the Judicial Conference (in its Annual Report recommending insertion of the prescriptive word “shall” in CPLR 305, subd [b]) as “at least basic information concerning the nature of plaintiff’s claim and the relief sought” (Twenty-third Ann Report of NY Judicial Conference, 1978, p 273). In another case we are today reaffirming our previous holdings that no action is commenced if the manner of service of the summons is not in compliance with statutory requirements (Markoff v South Nassau Community Hosp., 61 NY2d 283). The same result follows if the paper served is not in compliance with the statutory mandate as to substance and content (Ciaschi v Town of Enfield, 86 AD2d 903 [cited with approval in McLaughlin, 1982 Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1983-1984 Cum Ann Pocket Part, CPLR C305:3, p 131; see Ann., 6 ALR3d 1043, 1053-1054; but see authorities cited dissenting opn, at pp 125-126). The Legislature, by its adoption of the amendment proposed by the Judicial Conference, has determined and fixed a defendant’s entitlement, at the time and as part of service of process, to knowledge concerning the claim being asserted against him — an entitlement which imposes no conceivable burden or hardship on the plaintiff.

The dissent, although acknowledging the statement by the Judicial Conference (p 277) that, following adoption of the proposed amendment to CPLR 305 (subd [b]) mandating inclusion of the notice in question on a summons served alone, omission of such notice “would certainly constitute a jurisdictional defect”, would limit such impact to the effect on default judgments. Were such discrete — and unusual — consequences intended, the Legislature could readily have so provided. No such differentiation is evidenced in the statute however. In that circumstance, respect for legislative authority requires that we give equal effect for all purposes to the explicit addition of the imperative “shall” in CPLR 305 (subd [b]).

Although the dissent suggests that our decision is inconsistent with previous decisions of this court, in no case cited have we held that an action has been “commenced”, with resulting activation of the six-month extension provision of CPLR 205 (subd [a]) or its predecessor, when that action was terminated by reason of a deficiency related to obtaining jurisdiction over the person of the defendant. Thus, in Gaines v City of New York (215 NY 533) the dismissal was predicated on lack of subject matter jurisdiction of the court in which the first action had been commenced. In Carrick v Central Gen. Hosp. (51 NY2d 242) and George v Mt. Sinai Hosp. (47 NY2d 170) the earlier actions had been dismissed because of infirmities peculiar to the plaintiffs. The fatal consequence of a lack of jurisdiction over the person of the defendant as contrasted with a lack of subject matter jurisdiction for purposes of availability of a CPLR 205 (subd [a]) extension is well recognized (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C205:3, p 196, and Supplemental Practice Commentaries, Book 7B, 1983-1984 Cum Ann Pocket Part, pp 77-80).

Finally, we have rejected before (Smalley v Hutcheon, 296 NY 68), as we reject today (Markoff v South Nassau Community Hosp., 61 NY2d 283, supra) the argument that the fact of actual notice on the part of a defendant that plaintiff is seeking to litigate a claim against him is a substitute for compliance with statutory prescriptions for commencement of an action against him. Acceptance of such a proposition might suggest the wholly unacceptable proposition that nothing more than a letter from counsel advising that a suit was being instituted, delivered to defendant, would serve to activate the provisions of CPLR 205 (subd [a]).

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Meyer, J.

(dissenting). Plaintiffs served defendant within the governing limitation period with summonses which neither contained notice of the nature of the action nor the relief demanded but which clearly apprised defendant that plaintiffs sought to litigate a claim against him in Supreme Court and furnished him with their names and address as well as the name, address and telephone number of their attorney. The majority holds the absence of a complaint and of such notice is a jurisdictional defect and that plaintiffs, therefore, are not entitled to the benefit of the tolling provision of CPLR 205 (subd [a]). It does so on the basis of the one word change in CPLR 305 (subd [b]) made by chapter 528 of the Laws of 1978, and notwithstanding (1) legislative history showing that the amendment was made for an entirely different purpose, (2) the substantial body of law running back almost four centuries according a broad remedial effect to the tolling provision of CPLR 205 even though the earlier action which triggers its provision has been dismissed for lack of jurisdiction over the subject matter or over the person, (3) the further broadly remedial provision of CPLR 305 (subd [c]) vesting in the court discretion to allow amendment of a summons, absent prejudice to a substantial right of a party against whom the summons was issued, and (4) the legislative intent to excise such formalism evidenced by adoption of the Civil Practice Law and Rules and epitomized by CPLR 103 (subd [c]) and CPLR 104. Because I agree with this court’s assertion in Caffaro v Trayna (35 NY2d 245, 251) that “If there is here a provable claim, only unfairness to the defendant or inescapable statutory mandate should foreclose assertion of that claim” and because here neither exists, I respectfully dissent.

I

The papers on the cross motion which the Appellate Division ordered denied and the decision of the Special Term Judge establish the following: On October 18, 1978, Ute M. Parker was injured when her husband’s car, which she was operating, was struck by a car owned and operated by defendant, which allegedly failed to stop for a stop sign. On October 17,1981, defendant was personally served with two summonses, one entitled in an action by Ute M. Parker against defendant, the other entitled in an action by Arvin B. Parker, her husband, against defendant. Each summons set forth the name and address of the plaintiff and the name, address and telephone number of the plaintiffs’ attorney, called upon defendant to serve a notice of appearance within 20 days and stated that upon defendant’s failure to do so judgment by default would be taken against him for the relief demanded in the complaint. Neither summons contained on its face or by attachment a statement of the nature of the action and the relief sought as required by CPLR 305 (subd [b]), nor was a complaint served with either summons. Complaints were thereafter forwarded to the attorneys for defendant, but they returned the complaints and moved to dismiss for failure to comply with CPLR 305 (subd [b]). Plaintiffs conceded in their answering papers that the requirements of CPLR 305 (subd [b]) had not been met and, therefore, did not resist the motion to dismiss but cross-moved for a provision in the order of dismissal allowing plaintiffs an additional six months to recommence the action pursuant to CPLR 205 (subd [a]). The papers on the cross motion annexed medical bills totaling $6,259.37 and medical records establishing that Ute Parker’s injuries were serious, and alleged that defendant had pleaded guilty to failure to yield the right of way. On the basis of those papers Special Term found that plaintiffs had established that they had a meritorious cause of action and that Mrs. Parker’s injuries were severe and permanent. Defendant does not contend that those findings were erroneous nor has he suggested that he was prejudiced in defending the action in any way by the absence of notice or the “late” service of the complaint.

Special Term held the failure to serve a notice or complaint with the summons not to be jurisdictional and the extension provision of CPLR 205 (subd [a]), therefore, to be available. It entered an order dismissing the causes of action but providing that “plaintiffs may commence a new action within six months after service of a copy of this Order with notice of entry.” The Appellate Division modified by denying the cross motion, citing its earlier decision in Ciaschi v Town of Enfield (86 AD2d 903). We should reverse and reinstate the Special Term order.

II

The history of chapter 528 of the Laws of 1978 does not sustain the majority’s conclusion. Its amendment of CPLR 305 (subd [b]) to substitute the word “shall” for “may” was enacted on the recommendation of the Judicial Conference (Twenty-Third Ann Report of NY Judicial Conference, 1978, pp 271-277). Referring to an article by Homburger and Laufer (Appearance and Jurisdictional Motions in New York, 14 Buffalo L Rev 374, 393-400) as to the deficiencies and uncertainty surrounding default practice under the CPLR as a result of the permissive language of CPLR 305 (subd [b]), the conflict in the cases concerning whether a plaintiff who served an unaccompanied summons without notice could serve a complaint if defendant did not demand one, and the provision of CPLR 3215 (subd [b]) that a default judgment “shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305,” the conference suggested that the existing difficulties “would be avoided by the mandatory notice provision” {id., p 275). It rejected as a solution the requirement that summons and complaint be served at the same time, noting that emergencies made the use of a summons without a complaint a useful device, that service of a complaint articulating the grievances often embittered the atmosphere and dimmed the hope for settlement, and that “service of a summons without a complaint avoids these undesirable side effects; yet, it evidences the claimant’s determination to press his claim” {id., p 274 [emphasis supplied]). Moreover, although the last paragraph of the recommendation {id., p 277) discussed “whether a deviation from the notice standards prescribed by rule 305(b) as proposed to be amended, would constitute a jurisdictional defect or a mere irregularity”, it is clear from its citation of McDermott v Hoenig (32 AD2d 838) and from the last sentence of the paragraph that its statement that “the complete absence of any notice would certainly constitute a jurisdictional defect” referred to whether such a summons would be “jurisdictionally void for purposes of a default proceeding” (emphasis supplied), not to whether jurisdiction over the person of a defendant served with such process (and thus aware of “the claimant’s determination to press his claim”) had been obtained within the remedial purpose of CPLR 205 (subd [a]).

That service of a bare summons obtains sufficient jurisdiction over the person of the defendant to bring the situation within the remedial purpose of CPLR 205 (subd [a]) is, thus, fully consistent with the legislative history of the 1978 amendment to CPLR 305 (subd [b]). It accords with logic as well. The preamendment cases held that failure to give notice or serve a complaint left the court without jurisdiction to enter a default judgment (Mantell v Servidone Constr. Corp., 61 AD2d 1071; Eckert Co. v Fuller Co., 51 AD2d 844; Arden v Loew’s Hotels, 40 AD2d 894; McDermott v Hoenig, 32 AD2d 838, supra; see Long Mfg. v Ames Supply Co., 47 AD2d 990),.but they held no more than that; in none of them was the action dismissed. And the postamendment cases have recognized that the absence of notice does not make the summons a nullity such that appearance by the defendant will not remedy the defect (Aversano v Town of Brookhaven, 77 AD2d 641; Bal v Court Employment Project, 73 AD2d 69, 71; Schoonmaker v Ford Motor Co., 79 AD2d 1067, affg 99 Misc 2d 1095; Limpert v Garland, 100 Misc 2d 525; Kane v Erny, NYU, June 12, 1979, p 16, col 2; Wagenknecht v Lo Russo, 121 Misc 2d 45). As noted by the First Department in Bal v Court Employment Project (supra, at p 71): “Unlike the cited cases which were concerned only with the propriety of default judgments, we are concerned with the viability of the action. CPLR 305 (subd [b]) was intended as a shield to protect an unwary defendant from default judgment without proper notice, not a sword to trap a tardy or inattentive plaintiff into dismissal. The Legislature could not have intended to replace one sharp practice with another.” There is, thus, neither in the wording of the 1978 amendment nor in its history any indication of a “legislative intent to eliminate the applicability of CPLR 205” (Smith v Rensselaer County, 52 AD2d 384, 387).

Ill

The majority’s conclusion is, further, inconsistent with the spirit and purpose of CPLR 205 (subd [a]) and of decisions of this and other courts interpreting that subdivision. It is, moreover, but another manifestation of the obscurity and confusion which enshrouds the concepts of “jurisdiction” and “nullity,” upon which this court has previously had occasion to comment (George v Mt. Sinai Hosp., 47 NY2d 170; Nuernberger v State of New York, 41 NY2d 111; Gaines v City of New York, 215 NY 533).

In Gaines, Judge Cardozo, as he then was, traced the history of the statute that is now CPLR 205 (subd [a]) back to the English Limitation Act of 1623, copied into our laws by chapter 43 of the Laws of 1788, and ultimately into the Code of Procedure. His conclusion from that history as to its purpose and scope is instructive (215 NY, at p 539): “The statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts” (emphasis supplied). Because that was done by commencement of an action against the City of New York in the City Court even though that court had no jurisdiction of an action against the city, Gaines, having initiated a “proceeding by service of process, must be held to have commenced an action within the meaning of this statute, though he has mistaken his forum” (id., at p 541). The conclusion that Gaines’ “error ought not to bar the prosecution of his action” (id.) was, he noted, supported by many well considered State and Federal cases holding the Statute of Limitations “suspended though the earlier action was dismissed for lack of jurisdiction either of the subject-matter or of the person” (id. [emphasis supplied]).

Agreement that the broad and liberal purpose of CPLR 205 precludes construing it narrowly will be found in this court’s recent decisions in George v Mt. Sinai Hosp. (47 NY2d 170, supra) and Carrick v Central Gen. Hosp. (51 NY2d 242). In both we held second actions within the statute’s remedial purpose notwithstanding arguments that the first actions were a nullity and tantamount to no suit whatsoever. In George the plaintiff was dead when the first action was brought and defendant argued that, therefore, there was in fact no prior action. We recognized that to the exceptions listed in the subdivision, the courts had created an addition, holding that if the first action was never properly commenced because of a failure to serve the defendant, the statute is inapplicable, but refused to create another exception for the situation in which dismissal of the prior action resulted from its commencement by an improper or nonexistent plaintiff. “Such an action,” we noted, “is no more a ‘nullity’ than are actions which were dismissed for lack of jurisdiction or for nonjoinder, and yet the latter are traditionally deemed to be prior actions for purposes of CPLR 205 (subd [a])” (47 NY2d, at p 177).

Garrick likewise applied the statute to a prior wrongful death action brought by a plaintiff who denominated himself in the caption of her summons as the “proposed administratrix,” she not having been issued letters of administration at the time she served the summons in the first action. Though the Appellate Division had held CPLR 205 inapplicable because an action commenced prior to issuance of letters was “tantamount to no suit whatsoever,” we held that “the fact that the prior action was so defective as to be ‘tantamount to no suit whatsoever’ simply does not preclude the use of that remedial provision to revive an otherwise time-barred cause of action, provided, of course, that a prior timely action, however flawed, actually was ‘commenced’ within the meaning of CPLR 304” (51 NY2d, at p 249).

Only in the case of a defect in service have we held the original action wholly void and thus an insufficient predicate for CPLR 205 (subd [a]) extension (Smalley v Hutcheon, 296 NY 68; Erickson v Macy, 236 NY 412; see George v Mt. Sinai Hosp., 47 NY2d, at p 178). In Smalley the prior action arose out of a collision in Illinois between a car driven by defendant’s intestate and a car in which plaintiffs, nonresidents of New York, were riding. Plaintiffs began their Illinois action against decedent’s New York administrator by service upon the Secretary of State of Illinois. Under Illinois law a foreign administrator could not subject himself to the jurisdiction of the Illinois courts even by voluntary appearance; the first action was, therefore, clearly a nullity. In Erickson service in the first action was by publication upon defendant outside the State of New York pursuant to an order for such service issued by a Judge who was without authority to do so and whose order was, therefore, a nullity.

Here there is no contention that the summons was defectively served. Rather the contention is that the paper served, though it was received by defendant and advised him that plaintiffs had a claim against him which they sought to litigate, did not give him information concerning the nature and the relief demanded. To hold, as the majority does, that such service is a nullity and that CPLR 205 (subd [a]) is inapplicable, is inconsistent with both the reasoning of our prior decisions interpreting that section and with its spirit and purpose (see Siegel, 1978 Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1983-1984 Cum Ann Pocket Part, CPLR 3012:1, pars 19-23; Siegel, NY Prac, 1981-1982 Pocket Part, § 52; 3 Carmody-Wait 2d, NY Prac, p 678; Ann., 6 ALR3d 1043; cf. McLaughlin, 1982 Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1983-1984 Cum Ann Pocket Part, CPLR C305:3).

IV

To hold that service of a bare summons does not commence a prior action within the meaning of CPLR 205 is, moreover, inconsistent with the provisions of CPLR 304 and CPLR 305 (subd [c]). CPLR 304 states that “An action is commenced and jurisdiction acquired by service of a summons” (emphasis supplied). Unless it be reasoned that the paper served on defendant was not a summons because it did not “contain or have attached thereto” the notice required by CPLR 305 (subd [b]), jurisdiction was obtained over defendant by the service made. But to reason that the paper served was not a summons is to ignore the fact that “The object of the summons is to apprise the party defendant that the plaintiff therein seeks a judgment against him so that he may take such steps as may seem advisable to protect his interests” (Stuyvesant v Weil, 167 NY 421, 425).

It is also inconsistent with both subdivisions (b) and (c) of CPLR 305. It is inconsistent with subdivision (b) because by providing that “If the complaint is not served with the summons, the summons shall * * * have attached thereto a notice” (emphasis supplied) the Legislature has recognized the existence of a summons separate and apart from the required notice. It is inconsistent with subdivision (c), which reads, in pertinent part: “At any time, in its discretion and upon such terms as it deems just, the court may allow any summons * * * to be amended, if a substantial right of a party against whom the summons issued is not prejudiced,” for the Legislature intended a liberal rather than a restrictive interpretation of that subdivision. Thus, the drafter’s notes on the provision contained in the Second Preliminary Report of the Advisory Committee on Practice and Procedure to the Governor and the Legislature (NY Legis Doc, 1958, No. 13, p 154) state that “Certain defects, actually unsubstantial, have been held to be jurisdictional under present law” and conclude that “This subdivision is designed to eliminate any vestige of a doctrine of strict construction and makes the only test one of ‘prejudice.’ ”

The purpose behind the notice requirement of subdivision (b) having been to permit a plaintiff to obtain a default judgment even though no complaint or notice of the amount demanded had been given (see part II above), it is difficult to fathom how a defendant can be prejudiced by allowing amendment of the summons to set forth notice of the nature of the action and the relief demanded for, as we recognized in Valz v Sheepshead Bay Bungalow Corp. (249 NY 122, 136-137) in permitting a defect in service by publication to be cured by order made after publication had been completed, “[n]o safeguard which the Legislature has chosen to provide for the benefit of * * * defendant is rendered less effective” by doing so, and “We may not ascribe to the Legislature an intent to give undue importance to rigid formality.”

Special Term, it is true, did not exercise the discretion given by subdivision (c). Instead it granted plaintiffs’ cross motion and authorized commencement of a new action pursuant to CPLR 205 (subd [a]). But the absence of any claim of prejudice and the clear indication by the order made that he would have permitted amendment of the summons emphasizes how egregious is the majority’s misconstruction of the CPLR provisions on which it relies.

V

Finally, the majority’s conclusion is inconsistent with the express provisions of the CPLR that matters of form be disregarded and that its directions be liberally construed. CPLR 103 (subd [c]) mandates that “If a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution”, CPLR 2101 (subd [f]) requires that “A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given”, and CPLR 104 directs that “The civil practice law and rules shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding.” CPLR 103 (subd [c]) “was designed to eliminate the last remnants of dismissal for improper form that continued to exist under pre-CPLR practice” (1 Weinstein-Korn-Miller, NY Civ Prac, par 103.08). Furthermore, we have applied the liberal construction direction of CPLR 104 to the service of process, holding that CPLR 311 (subd 1) should not be read in “a narrow and technical manner,” and that, therefore, service on the executive secretary of a corporate officer was proper service upon the corporation, the purpose of the service provision being “to give the corporation notice of the commencement of the suit” (Fashion Page v Zurich Ins. Co., 50 NY2d 265, 271). I do not blink the opening clause of CPLR 103 (subd [c]). Rather, I suggest that service of a summons without notice or complaint is, for the reasons set forth above, sufficient to give the court jurisdiction over the parties, that whether the failure to give notice of the nature of the action and the relief demanded be regarded as a defect in the form of the action or a defect in a paper (which a summons clearly is, see CPLR 2101, subds [a], [c]), plaintiffs’ present action was timely under CPLR 205 and that to hold otherwise is wholly inconsistent with the movement away from formalism which the CPLR embodies.

For the foregoing reasons, the order of the Appellate Division should be modified to reinstate the Supreme Court order granting the cross motion and, as so modified, affirmed.

Chief Judge Cooke and Judges Wachtler and Kaye concur with Judge Jones; Judge Meyer dissents and votes to modify in a separate opinion in which Judge Jasen concurs; Judge Simons taking no part.

Order affirmed, with costs.

      . CPLR 305 (subd [b]) provides: “(b) Summons and notice. If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default.”

      . CPLR 205 (subd [a]) provides: “(a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if he dies, and the cause of action survives, his executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action.”

      . The dissent’s reliance on the provisions of CPLR 103 (subd [c]), 104, and 2101 (subd [fj) as authorizing disregard with respect to matters of form is inapposite. These provisions assume that an action has been properly commenced thereby triggering the availability of the mosaic of regulatory provisions of the CPLR. Moreover, the present deficiency is one of substance and content, not form.

      . In Ciaschi (86 AD2d 903, 904) the Appellate Division, citing its own earlier decision in Premo v Cornell (71 AD2d 223, 224, on later app 83 AD2d 981, affd 55 NY2d 962), stated that in view of the change made in CPLR 305 (subd [b]) by chapter 528 of the Laws of 1978 “from a permissive to a mandatory notice provision * * * the complete absence of any notice is a jurisdictional defect”. The holding in Premo was, however, that the absence of a monetary amount in a notice served with the summons was a defect correctable pursuant to CPLR 305 (subd [c]). Its statement that the complete absence of notice is a jurisdictional defect was unnecessary to the decision and, as hereafter indicated, is not borne out by the legislative history.

      . That subdivision provides, in pertinent part, that: “If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff * * * may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action.” Defendant does not suggest that dismissal of the first action was voluntary, or on the merits, or for neglect to prosecute or that the action was not timely when commenced.

      . Of course a paper served as a summons could be so deficient that it prejudices a substantial right of a party and, therefore, could not be regarded as a summons within the meaning of the CPLR (cf. CPLR 2101, subd [f|), as where though served upon an individual it fails to name him as a defendant. But rigid formalism should not defeat a claim when “[t]he essential requirement to bring a defendant into court * * * [that he be] properly identified] * * * and givefn] notice of opportunity to defend” has been met (City of Mount Vernon v Best Dev. Co., 268 NY 327, 331).

      . It could perhaps be argued on the basis of CPLR 205 that when more than six months has elapsed between the time of service and the application to amend and in the meantime material evidence has become unavailable to defendant, amendment should not be allowed. Nothing in CPLR 305 (subd [c]) so requires, however, amendment being committed to the discretion of the court. In any event, no such problem is here present.

      . That the result reached by the majority is not substantive but rigidly formal is readily apparent when one recalls (1) that personal jurisdiction was obtained over defendants by the service of a bare summons for several centuries, until the passage of the 1978 amendment to CPLR 305, (2) that this would not be the first time that the court has read “shall” to be less than absolutely mandatory when harm was done to neither the legislative purpose nor a party by so doing (McKinney’s Cons Laws, Book 1, Statutes, § 177, p 344 [“The use of the word ‘shall’ in a statute is not the final and conclusive test of the intent of the Legislature”]; Riggs v Palmer, 115 NY 506, 509 [“It is a familiar canon of construction that * * * a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers”]), and (3) that the majority’s reasoning would elevate to the level of jurisdictional absolutes the requirements of CPLR 305 (subd [a]) that the summons “shall specify the basis of the venue” and when a consumer credit transaction is involved “shall prominently display at the top of the summons the words ‘consumer credit transaction’ ”, although the specification of venue has not previously been regarded as jurisdictional (see McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 513) and it cannot seriously be contended that personal jurisdiction should turn on where the words “consumer credit transaction” appear on the summons.

      . See, also, CPLR 2001, which directs that “if a substantial right of a party is not prejudiced, [a] mistake, omission, defect or irregularity shall be disregarded.”


text:
    New York Criminal and Civil Courts Bar Association, Appellant, v Leonard D. Jacoby et al., Individually and as Copartners Doing Business as Jacoby & Meyers, Respondents.
    Argued January 11, 1984;
    decided February 21, 1984

      POINTS OF COUNSEL

      Sidney Siller, Edward G. Galian and Irving Smith for appellant.
    I. Plaintiff’s complaint states a valid cause of action under sections 478 and 476-a of the Judiciary Law. II. Advisory provisions of the “Code of Professional Responsibility” cannot supersede the Judiciary Law. (Matter of Weinstock, 40 NY2d 1.) III. The firm title “Jacoby & Meyers” falsely represents that the principals are New York attorneys. (Spivak v Sachs, 16 NY2d 163; People v Alfani, 227 NY 334; Bennett v Goldsmith, 280 NY 529; Matter of New York County Lawyers’ Assn. [Cool], 294 NY 853; Matter of New York County Lawyers Assn. [Roel], 3 NY2d 224.) IV. The prohibition to practice law under section 478 of the Judiciary Law is applicable to out-of-State lawyers. (Spivak v Sachs, 16 NY2d 163; Jemzura v McCue, 45 AD2d 797.) V. Defendant’s conduct constitutes attempt to circumvent section 478 of the Judiciary Law. (Baldwin v Lev, 163 Misc 929; Spivak v Sachs, 16 NY2d 163; Jemzura v McCue, 45 AD2d 997, 37 NY2d 750.)

      Stephen L. Kass and Jean M. McCarroll for respondents.
    I. The court below was correct in ruling that the complaint fails to state a cause of action under the New York Judiciary'Law. (People v Divorce Associated & Pub., 95 Misc 2d 340; People v Alfani, 227 NY 334; Jemzura v McCue, 45 AD2d 797; Wyckoff v O’Neil, 64 Misc 2d 333; Matter of New York County Lawyers’ Assn. [Cool], 181 Misc 718, 268 App Div 901, 294 NY 853.) II. The courts should look to the Code of Professional Responsibility where, as in this case, the code provides guidance and statutes and case law do not. (Matter of Weinstock, 40 NY2d 1; People v Hobson, 39 NY2d 479; Matter of Rosenthal v Harwood, 35 NY2d 469; Spilky v Hirsch, 102 Misc 2d 536; Flushing Nat. Bank v Municipal Assistance Corp., 90 Misc 2d 204.) III. Defendants’ advertising is truthful and proper and, being purely institutional, makes no representations about individual partners in the firm. (Bates v State Bar of Ariz., 433 US 350; Matter of R.M.J., 455 US 191.) IV. Defendants’ actions accord with the letter and spirit of both the Judiciary Law and the Code of Professional Responsibility and conform to the current, accepted practice by multistate firms in this State. (Kalmanash v Smith, 291 NY 142; Alaxanian v City of Troy, 69 AD2d 937; Pekar v Town of Veteran, 65 AD2d 651; Cooper v Van Cortlandt Assoc., 54 AD2d 545; Zelenski v Incorporated Vil. of Patchogue, 51 AD2d 1055; Taylor v State of New York, 36 AD2d 878; Loudin v Mohawk Airlines, 24 AD2d 447; Hawkins v McCluskey, 79 AD2d 853.)
   OPINION OF THE COURT

Jones, J.

A multistate law firm (consisting of partners admitted to practice in different States) may practice law in New York State if at least one of its active partners is admitted to practice in this State, and it may conduct such practice under a firm name comprised of a combination of surnames, although none of them is the surname of a partner licensed to practice in New York. The firm may use a letterhead and advertisements disclosing the firm name only, but if on either there also appears the name of any individual partner or associate who is not admitted to practice in New York there shall be a clear indication of that fact.

After first making a written request to the Attorney-General, pursuant to the provisions of subdivision 2 of section 476-a of the Judiciary Law, the New York Criminal and Civil Courts Bar Association obtained leave from the Supreme Court to bring the present action. The Bar Association, charging defendants with the unauthorized practice of the law, seeks to enjoin Leonard D. Jacoby, Stephen Z. Meyers and Gail J. Koff from practicing law in New York under the name and style of “Jacoby & Meyers” (see Judiciary Law, § 476-b). Supreme Court denied both defendants’ motion to dismiss the complaint and plaintiff’s cross motion for summary judgment. The Appellate Division modified by dismissing the complaint. On further1 appeal to us, appellant has requested that we treat the appeal as though before us on cross motions for summary judgment (as appears to have been the procedural posture assumed by the Appellate Division in making its determination). We affirm.

From the allegations of the complaint and the affidavits submitted by the parties, it appears that Jacoby & Meyers is a national law firm with numerous offices in the States of California and New York. Leonard D. Jacoby and Stephen Z. Meyers, the name partners, are admitted to practice law in California but not in New York. Gail J. Koff, the partner of the firm resident in New York, is a member of the New York Bar actively engaged in practice in New York who supervises the 20 or so neighborhood offices maintained by the firm in New York State. The firm uses letterheads bearing the firm name with a listing of the locations within the State of New York where the firm maintains offices and the names of its partners, identifying those who are not licensed to practice in New York. The firm also advertises in New York in the firm name without disclosure of the name of any partner or associate.

Plaintiff grounds its action in the provisions of section 478 of the Judiciary Law, which provides in pertinent part:

“Practicing or appearing as attorney-at-law without being admitted and registered

“It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself in a court of record in this state or in any court in the city of New York, or to furnish attorneys or counsel or an attorney and counsel to render legal services, or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner, or to assume to be an attorney or counselor-at-law, or to assume, use, or advertise the title of lawyer, or attorney and counselor-at-law, or attorney-at-law or counselor-at-law, or attorney, or counselor, or attorney and counselor, or equivalent terms in any language, in such manner as to convey the impression that he is a legal practitioner of law or in any manner to advertise that he either alone or together with any other persons or person has, owns, conducts or maintains a law office or law and collection office, or office of any kind for the practice of law, without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath and without having subscribed and taken the oath or affirmation required by section four hundred sixty-eight of the judiciary law and filed the same in the office of the clerk of the court of appeals as required by said section.” There is no claim that either Jacoby or Meyers or any other partner or associate of the firm not admitted to practice law in New York is actually practicing law in the State of New York. Rather the gravamen of plaintiff’s complaint is that use of the firm name is a factual misrepresentation that both of the name partners are available to render legal services in New York. We reject this contention and conclude as a matter of law that use of a firm name comprised of surnames, without more, does not constitute any holding out that there are individual partners bearing those surnames who are admitted to practice in New York, or indeed that there are partners in the firm who bear such surnames, wherever admitted. Plaintiff’s attempt to distinguish instances (of which there are many in New York State, particularly in New York City) of the use of firm names made up of surnames of partners one or more of whom are deceased is not persuasive. Its assertion is that the clients, both actual and potential, of such latter firms are sufficiently sophisticated to understand that the use of such firm names constitutes no representation that there is any member of the firm who bears one of the surnames that appear in the firm name. We find no significant difference between the use in a firm name of the surname of a deceased partner and the surname of a partner not practicing in New York. In both instances the firm name is an institutional description and its use constitutes no representation that anyone bearing a surname corresponding to the names in the firm title is available to render professional services.

Disciplinary Rule 2-102(D) of the Code of Professional Responsibility, adopted to prescribe the standards of professional conduct on the part of the burgeoning number of multistate firms, provides: “A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction.” Although the provisions of the Code of Professional Responsibility are not entitled in all instances to be accorded the status of statute or case law (see Matter of Weinstock, 40 NY2d 1, 6), in this instance the rule fairly states the appropriate application to multistate law firms of the provisions of section 478 of the Judiciary Law.

The practice of law by firms comprised of partners and associates some of whom are not residents of the State of New York and some of whom are not licensed to practice law in the State is not, as such, prohibited under our State law. It is the policy of the State of New York to foster the availability of a wide range of professional services by lawyers qualified to render them. But no natural person, whether or not a partner or associate of a multistate firm, may practice law in New York State unless he or she is admitted to practice here. The practice of law by multistate firms, therefore, may be conducted in New York only by partners and associates who are licensed to practice in this State. No claim is advanced in this case, however, that the practice of the firm of Jacoby & Meyers is conducted in New York State other than by lawyers who are admitted to practice here.

The firm may use a letterhead disclosing only its firm name and may advertise the availability of its services under the firm name alone provided that it has an active partner who is admitted to practice in New York. If, in either instance, reference is made to the names of individual lawyers who are partners or associates of the firm but not members of the New York Bar, there must be a clear indication that each such individual lawyer is not admitted to practice in New York State.

There having been no tender of evidence in admissible form that defendants or the firm of Jacoby & Meyers are violating any of the foregoing rules of law, defendants were entitled to summary judgment dismissing the complaint.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Wachtler, Meyer and Kaye concur; Judge Simons taking no part.

Order affirmed, with costs.

      . Judiciary Law, § 476-a provides:
      “Action for unlawful practice of the law
      “1. The attorney-general may maintain an action upon his own information or upon the complaint of a private person or of a bar association organized and existing under the laws of this state against any person, partnership, corporation, or association, and any employee, agent, director, or officer thereof who commits any act or engages in any conduct prohibited by law as constituting the unlawful practice of the law.
      “The term ‘unlawful practice of the law’ as used in this article shall include, but is not limited to,
      “(a) any act prohibited by penal law sections two hundred seventy, two hundred seventy-a, two hundred seventy-e, two hundred seventy-one, two hundred seventy-five, two hundred seventy-five-a, two hundred seventy-six, two hundred eighty or fourteen hundred fifty-two, or
      “(b) any other act forbidden by law to be done by any person not regularly licensed and admitted to practice law in this state, or
      “(c) any act punishable by the supreme court as a criminal contempt of court under section seven hundred fifty-B of this chapter.
      “2. Such an action may also be maintained by a bar association organized and existing under the laws of the state of New York, upon an application to the supreme court of the state of New York, or a justice thereof, for leave to bring the same by such bar association on good cause shown therefor and proof that a written request was made upon the attorney-general to bring such an action and that more than twenty days have elapsed since the making of such request and he has failed or refused to bring such an action.”

      . (Cf. Matter of Gordon, 48 NY2d 266 [residence in the State of New York not required for admission to practice law].)

      . Opinions issued by the ethics committees of the New York State Bar Association and the Association of the Bar of the City of New York recognize the ethical propriety of such practice: New York State Bar Association — Opinion No. 434 (“a partnership may properly be formed among lawyers admitted to practice in different states”), Opinion No. 344 (“Code recognizes the propriety of a partnership among lawyers licensed in different jurisdictions”), Opinion No. 175 (“a multi-state law firm practicing in New York may use the same name as in other states”) and Opinion No. 144 (“partnerships may properly be formed between lawyers admitted to practice in different states”); Association of the Bar of the City of New York — Opinion No. 82-13 (“DR 2-102[D] of the Code of Professional Responsibility provides that with respect to a partnership ‘between or among lawyers licensed in different jurisdictions * * * the same firm name may be used in each jurisdiction.’ ”)