Opinion
April 25, 1991
Appeal from the Supreme Court, New York County (Edward Greenfield, J.).
Respondents shall recover of appellant one bill of $250 costs and disbursements of these appeals.
The underlying action by plaintiff Bart Schwartz is the latest in a series of interrelated actions brought by the plaintiff against his former counsel, the Stecher Defendants, for their alleged legal malpractice while representing plaintiff Schwartz and his corporate alter ego, Ultracashmere House, Ltd.
Specifically, plaintiff's claim arises from an action entitled Ultracashmere House v. Kenston Warehousing Corp. (Index No. 7547/82), wherein, after a jury trial, Ultracashmere was awarded a judgment of $495,513.68, with the judgment proceeds thereafter deposited into court and held by the defendant Commissioner of Finance in an interest-bearing account pending resolution of a legal fee dispute between Ultracashmere and its attorneys.
Subsequently, by a May 26, 1989 Order and Judgment, Justice Wilk directed the Commissioner of Finance to pay the attorneys the total sum of $339,000, which was duly paid by the Commissioner upon being presented with a copy of that order and judgment.
On October 30, 1990, this Court unanimously affirmed the May 26, 1989 Judgment which, inter alia, fixed the Stecher Defendants' lien for attorney's fees pursuant to Judiciary Law § 475 (Ultracashmere House v. Kenston Warehousing Corp., 166 A.D.2d 386).
Plaintiff now alleges that the Stecher Defendants fraudulently induced the Commissioner of Finance to pay their fee over to them, and that the Commissioner of Finance improperly paid out the sum of $339,000 from the funds on deposit "without the benefit of any written document so authorized by legal court order."
Upon examination of the record, we find that the IAS court properly dismissed the underlying action pursuant to CPLR 3211 (a) (8) where the February 15, 1990 summons, served without a complaint and with merely the notation thereon "FOR MONEY DAMAGES", failed to contain the information mandated by CPLR 305 (b). The complete absence in plaintiff's summons of the notice requirements contained in CPLR 305 (b) was clearly a jurisdictional defect, which warranted dismissal (Parker v Mack, 61 N.Y.2d 114, 117).
Similarly, the IAS court properly denied plaintiff's motion for a default judgment against the Commissioner of Finance in view of the June 18, 1990 Order dismissing the underlying action as against all the defendants, thereby rendering service of an amended summons in the dismissed action a nullity. The notice defect in both the initial and amended summons was a jurisdictional defect which rendered the summons insufficient for the purposes of taking a default judgment (Frerk v. Mercy Hosp., 99 A.D.2d 504, 505; Hollander v. Lensky, 124 Misc.2d 683, 684).
The plaintiff's motion seeking leave to serve a proposed new summons and complaint upon the Stecher Defendants and to commence a new action was also properly denied.
We have reviewed the plaintiff's remaining claims, and find them to be without merit.
Concur — Sullivan, J.P., Carro, Rosenberger, Kupferman and Rubin, JJ.