Tuesday, April 24, 2018

Notice Sufficient, Default Not Vacated

An immediate suspension has been ordered by the New York Appellate Division for the First Judicial Department

The Attorney Grievance Committee (Committee) has charged respondent with three violations of the New York Rules of Professional Conduct (22 NYCRR 1200.0) in connection with respondent's appearance at trial in Davler Media Group, LLC v Astro Gallery of Gems, when the judge in that matter denied respondent's demand that she recuse herself from the case. Specifically, the charges allege that respondent engaged in undignified and discourteous conduct and conduct that is prejudicial to the administration of justice when he stated, in support of his request for recusal, that Judge Debra Rose Samuels had made false statements against him and was personally biased against him (rules 3.3[f][2] and 8.4[2]); engaged in undignified and discourteous conduct by threatening, in open court, to file a complaint against Judge Samuels with the Commission on Judicial Conduct (rule 3.3[f][2]); and engaged in conduct that adversely reflects on his fitness as a lawyer, as it relates to the foregoing conduct (rule 8.4[h]). Respondent defaulted on the petition.

He moved to vacate the default claiming lack of service

We find that respondent has failed to rebut the Committee's evidence of proper service. Jurisdiction was properly attained over respondent where the petition of charges was delivered to "Connie" at respondent's actual place of business and then mailed the next day to respondent's office, and any defects in the affidavit of service or the failure to timely file said affidavits with this Court are irregularities that can be properly cured by deeming it filed nunc pro tunc (Bell v Bell, Kalnick, Klee & Green, 246 AD2d at 443; see also Air Conditioning Training Corp v Pirrote, 270 App Div 391, 393 [1st Dept 1946][there is a difference between service and proof of service with the fact of proper service, which confers jurisdiction]).

In addition to proper personal service, respondent was given notice of the petition of charges via the Committee's emails to him (pursuant to his instructions), even if he could not open the attachments by using his cell phone, where the subject line and text of the email advised him of the nature of the petition, its return date, and that he would be receiving hard copies via personal service at his office and by mail.

With regard to respondent's request for an extension of time to answer the petition because, despite his request for documents and records that are in the control of the Committee, the Committee has refused and neglected to turn them over to him, the record does not bear this out.

In addition to finding respondent in default and deeming the charges admitted, he should be immediately suspended from the practice of law since his default in responding to the petition constitutes conduct that immediately threatens the public interest under 1240.9(a)(1).

(Mike Frisch)


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