Appellate Division: Second Judicial Department

M62636

E/nl

A. GAIL PRUDENTI, P.J.

HOWARD MILLER

ROBERT W. SCHMIDT

STEPHEN G. CRANE

REINALDO E. RIVERA, JJ.

2007-01881 In the Matter of Peter J. Schmerge, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Peter J. Schmerge, respondent. (Attorney Registration No. 1629799)

DECISION & ORDER ON MOTION

The Grievance Committee for the Ninth Judicial District moves for an order adjudicating the respondent in default based upon his failure to answer a petition dated February 26, 2007, deeming the charges established, and directing that discipline be imposed. The respondent separately moves for an order staying the proceedings and directing that he complete a monitoring program sponsored by a lawyers' assistance program approved by the court, pursuant to 22 NYCRR 691.4 (m), or in the alternative, converting his suspension from a suspension pursuant to 22 NYCRR 691.4(l)(1)(i)(ii) and (iii) to a suspension pursuant to 22 NYCRR 691.13 due to a mental and emotional infirmity. The Grievance Committee also separately moves for leave to supplement the petition and supplemental petition with a second supplemental petition dated September 28, 2007. By decision and order on motion dated May 15, 2007, this court (1) suspended the respondent from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(i)(ii) and (iii), upon a finding that he was guilty of professional misconduct immediately threatening the public interest in that he failed to comply with the lawful requests of the Grievance Committee and based upon his substantial admissions under oath, as well as other uncontroverted evidence of professional misconduct, (2) authorized the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent, and (3) referred the matter to Richard Greenblatt, as Special Referee to hear and report. By decision and order on motion of this court dated June 21, 2007, that branch of the Grievance Committee 's motion to supplement the previously-authorized petition with additional charges set forth in a supplemental memorandum dated March 28, 2007, was granted to the extent that the petition was supplemented with two additional charges and that branch of the motion was otherwise denied. The respondent was admitted to the bar at a term of the Appellate Division of the Supreme Court in the First Judicial Department on February 14, 1972.

Upon the papers submitted in support of the motions and the papers submitted in opposition thereto, it is

ORDERED that the motion of the Grievance Committee for the Ninth Judicial Department, inter alia, to adjudicate the respondent in default is denied; and it is further,

ORDERED that the motion of the respondent, inter alia, to stay the proceeding or convert the grounds of his suspension is denied; and it is further,

ORDERED that the motion of the Grievance Committee for leave to supplement the petition and supplemental petition with the second supplemental petition dated September 28, 2007, is granted; and it is further,

ORDERED that within 20 days after service upon him of a copy of this decision and order on motion, the respondent shall serve an answer to the second supplemental petition upon the petitioner and the Special Referee, and shall file the original answer in the office of the Clerk of this court; and it is further,

ORDERED that on the court's own motion, Richard Greenblatt is relieved as Special Referee; and it is further,

ORDERED that the issues raised by the petition and supplemental petitions and any answers thereto are referred to the Honorable Lewis L. Douglass, a retired Justice of the Supreme Court, Kings County, 166-25 Powells Cove Boulevard, Whitestone, N.Y. 11357, as Special Referee to hear and report, together with his findings on the issues, and to submit a report within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda.

PRUDENTI, P.J., MILLER, SCHMIDT, CRANE and RIVERA, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court