Summary
upholding constitutionality of Section 470 but noting that a resident attorney may utilize her home as an office
Summary of this case from Schoenefeld v. StateOpinion
June 9, 1998
Appeal from the Supreme Court, New York County (Edward Lehner, J.).
Plaintiffs attorney, a resident of Washington, D.C., was properly found not to have satisfied the condition placed upon the practice of law in New York State by non-New York residents pursuant to Judiciary Law § 470, namely, that they maintain an "office for the transaction of law business * * * within the state". The motion courts essentially factual determination in this regard was amply supported by the evidence. The assertion by plaintiff that his attorney transacted legal business from a small room located in the basement of a restaurant and bar reachable only by passing through a kitchen and down a flight of stairs was most improbable. In addition, plaintiffs attorney had not reported any New York income for the past five years; he had no employees in this State; his name was not posted anywhere on the premises; there was no indication that any of the employees of the restaurant/bar had ever been instructed to accept legal papers; and the attorney had listed, both on his registration with the Office of Court Administration and on his membership forms for the Association of the Bar of the City of New York, a Washington address as his office.
Nor is there merit to plaintiffs contention that the New York office requirement of Judiciary Law § 470 violates the Privileges and Immunities Clause of the United States Constitution. It is well settled that "statutes — the enactments of a coequal branch of government — enjoy a presumption of constitutionality" ( Matter of Lunding v. Tax Appeals Tribunal, 89 N.Y.2d 283, 287, revd on other grounds 522 U.S. ___, 118 S.Ct. 766; Matter of McGee v. Korman, 70 N.Y.2d 225, 231) and that "[t]he drastic step of striking a statute as unconstitutional is to be taken only as a last resort" ( Matter of McGee v. Korman, supra, at 231).
Certainly, a State has an interest in ensuring that a lawyer practicing within its boundaries is amenable to legal service and to contact by his or her client, as well as opposing and other interested parties, and a State may therefore, reasonably require an attorney, as a condition of practicing within its jurisdiction, to maintain some genuine physical presence therein ( see, Tolchin v. Supreme Ct., 111 F.3d 1099, 1109, cert denied ___ U.S. ___, 118 S.Ct. 435). The New York office requirement of Judiciary Law § 470 is, accordingly, constitutional. We need not reach plaintiffs additional contention that the subject statute impermissibly discriminates between non-resident attorneys from States adjacent to and not adjacent to New York, since plaintiffs failure to satisfy the statutes constitutionally. permissible threshold requirement of a New York office renders any such distinction inconsequential in his case.
We have considered plaintiffs remaining arguments and find them to be without merit.
Concur — Milonas, J. P., Wallach, Williams, Tom and Mazzarelli, JJ.
[See, 171 Misc.2d 933.]