In re Persky ( 1983 )

OPINION OF THE COURT

Per Curiam.

Michael Gentile, chief counsel to the Departmental Disciplinary Committee, has moved for an order recalling and reconsidering this court’s order of March 24, 1983, which reinstated respondent as an attorney (92 AD2d 372).

Movant claims that the majority erroneously held that this court is bound by the decision of the Committee on Grievances, now the Departmental Disciplinary Committee, to reprimand respondent without referring the matter to this court for further sanctions, in a proceeding involving respondent’s conduct in the Newburger, Loeb matter.

We noted that respondent had been disciplined for his conduct in Newburger, Loeb, and that the matter was not subject to further review. The reprimand had been imposed on December 28, 1978, and the Grievance Committee did not, as it could have done, refer the matter to the court for a further sanction. On November 13, 1979, we referred the entire matter to the counsel for the Departmental Disciplinary Committee, movant’s predecessor, “for the purpose of reviewing, de novo, the entire record concerning respondent and drawing charges for further suspension or disbarment.” Counsel found no basis for preferring additional charges. Inasmuch as the court, upon receipt of his report, did not appoint special counsel and draw charges, or take other action as it might have considered appropriate, it must be deemed to have accepted the report. Consequently, the court fully considered the sanction imposed in Newburger, Loeb, and upon reflection deemed such sanction to be appropriate. The court cannot, and indeed should not, after a lapse of over four years since the reprimand and almost three years from the date of counsel’s report, during all of which time respondent has been suspended, impose a different sanction. In light of these circumstances, we held that respondent had been disciplined for his conduct in Newburger, Loeb and that the matter was not subject to further review. In so holding, we did not limit our power to sanction beyond the unique circumstances of this case. Manifestly, to impose additional sanctions at this juncture would constitute an abuse of discretion.

This court is the ultimate arbiter of whether an applicant for admission or reinstatement has met his burden of establishing that he possesses the requisite character and fitness to practice law. We found that respondent had met his burden. Movant has not raised anything which was overlooked by this court on the application for reinstatement, and his motion should be denied. Finally, we note that the Disciplinary Committee, for whom movant ostensibly speaks, expressly did not oppose the application leading to the order which movant now seeks to recall and reconsider.

The motion is denied.