| Matter of Ross |
| 2016 NY Slip Op 05647 |
| Decided on July 27, 2016 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on July 27, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
WILLIAM F. MASTRO
REINALDO E. RIVERA
MARK C. DILLON
L. PRISCILLA HALL, JJ.
By opinion and order of this Court dated April 22, 2015, Mitchell S. Ross was disbarred upon his default in answering a verified petition dated March 12, 2014, and his name was stricken from the roll of attorneys and counselors-at-law. Motion by Mitchell S. Ross (1) to vacate the opinion and order of this Court dated April 22, 2015, (2) to vacate so much of a decision and order on motion of this Court dated July 17, 2014, as granted that branch of a motion by the Grievance Committee for the Tenth Judicial District which was pursuant to 22 NYCRR 691.4(l)(1)(i) to suspend him from the practice of law, and (3) for a hearing on the allegations of professional misconduct set forth in the verified petition dated March 12, 2014. Application by Mitchell S. Ross to Presiding Justice Eng pursuant to Judiciary Law § 90(6) for leave to defend himself against the allegations of professional misconduct set forth in the verified petition dated March 12, 2014. Mr. Ross was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Third Judicial Department on March 26, 1985. By decision and order on motion of this Court dated July 17, 2014, Mr. Ross was immediately suspended from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(i), based upon his failure to cooperate with the Grievance Committee, the Grievance Committee was authorized to institute and prosecute the disciplinary proceeding against him, Mr. Ross was directed to serve and file an answer to the verified petition within 20 days of service of the decision and order on motion upon him, and the issues raised by the verified petition, and any answer thereto, were referred to the Honorable Georgia Tschiember, as Special Referee, to hear and report.
In his affidavit in support of the motion and application, Mr. Ross contends, inter alia, that he did not receive the verified petition, the decision and order on motion dated July 17, 2014, and the opinion and order dated April 22, 2015, served upon him by means of substituted service, as authorized by this Court, at his office address reflected in the attorney registration records maintained by the Office of Court Administration (hereinafter OCA). Mr. Ross explains that in May 2013, prior to the initiation of the grievance investigation, he moved from that office address but failed to properly notify OCA of the change of address. As such, Mr. Ross contends that he was unaware of the disciplinary proceeding against him, and thus, his failure to serve a response to the motions brought by the Grievance Committee, or to file and serve an answer to the verified petition, was not wilful.
In view of the foregoing, the motion seeks an order (1) vacating the opinion and order of this Court dated April 22, 2015, (2) vacating so much of a decision and order on motion of this Court dated July 17, 2014, as granted that branch of a motion by the Grievance Committee for the Tenth Judicial District which was pursuant to 22 NYCRR 691.4(l)(1)(i) to suspend him from the practice of law, and (3) directing a hearing on the allegations of professional misconduct set forth [*2]in the verified petition dated March 12, 2014. Further, the application by Mitchell S. Ross to Presiding Justice Eng pursuant to Judiciary Law § 90(6) seeks leave to defend himself against the allegations of professional misconduct set forth in the verified petition dated March 12, 2014.
DECISION & ORDER
The Grievance Committee for the Tenth Judicial District takes no position with respect to the merits of the motion and application.
Upon the papers filed in support of the motion and the application, and the papers filed in relation thereto, it is
ORDERED that, upon good cause shown, the motion and the application are granted, and the opinion and order of this Court dated April 22, 2015, and so much of the decision and order on motion dated July 17, 2014, as immediately suspended the respondent, Mitchell S. Ross, from the practice of law are vacated (see Judiciary Law § 90[6]); and it is further,
ORDERED that the respondent, Mitchell S. Ross, is reinstated as an attorney and counselor-at-law, and the Clerk of the Court is directed to restore the name of Mitchell S. Ross to the roll of attorneys and counselors-at-law; and it is further,
ORDERED that on or before August 16, 2016, the respondent, Mitchell S. Ross, shall serve a copy of his verified answer to the verified petition dated March 12, 2014, upon the Grievance Committee and the Special Referee, and file the original answer to the verified petition dated March 12, 2014, with this Court; and it is further,
ORDERED that the parties are directed to proceed with the previously authorized disciplinary proceeding.
ENG, P.J., MASTRO, RIVERA, DILLON and HALL, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court