Appellate Division: Second Judicial Department

M92656

E/cb

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

STEVEN W. FISHER, JJ.

2009-06121 In the Matter of Eric G. Oster, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Eric G. Oster, respondent. (Attorney Registration No. 2148559)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District for an order: (1) suspending the respondent from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii) based upon professional misconduct immediately threatening the public interest in that he obstructed its investigation of a sua sponte complaint regarding his failure to re-register as an attorney and to respond to repeated requests for a written answer to a pending complaint and uncontroverted evidence of his failure to re-register, as required by Judiciary Law § 468-a and 22 NYCRR 118.1 of the Rules of the Chief Administrator for four consecutive registration periods; (2) authorizing it to institute and prosecute a disciplinary proceeding based on a petition dated June 3, 2009; and (3) referring the issues raised by the petition and any answer thereto to a Special Referee to hear and report. The respondent was publicly censured by opinion and order of this court dated April 15, 2002, as a result of a previous disciplinary proceeding based on his failure to re- register (see Matter of Oster, 292 AD2d 78 [Appellate Division Docket No. 2000-04317]). The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on December 12, 1984.

Upon the papers submitted in support of the motion and no papers having been submitted in opposition or in relation thereto, it is

ORDERED that the motion is granted, and pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), the respondent, Eric G. Oster, is immediately suspended from the practice of law in the State of New York, pending further order of the court; and it is further,

ORDERED that the respondent, Eric G. Oster, shall promptly comply with this court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this court, the respondent, Eric G. Oster, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that the Grievance Committee for the Tenth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this court against Eric G. Oster, based on the petition dated June 3, 2009; and it is further,

ORDERED that Rita E. Adler, Chief Counsel to the Grievance Committee for the Tenth Judicial District, 150 Motor Parkway, Suite 102, Hauppauge, N.Y. 11788, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that within 20 days after service upon him of a copy of this order, the respondent, Eric G. Oster, shall serve an answer upon the petitioner and the Special Referee, and shall file the original answer with this court; and it is further,

ORDERED that the issues raised by the petition and any answer thereto are referred to Peter T. Affatato, Esq., Briarcliffe Building, 1055 Stewart Avenue, Bethpage, N.Y. 11714, as Special Referee to hear and report within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda; and it is further,

ORDERED that if the respondent, Eric G. Oster, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate with the Grievance Committee for the Tenth Judicial District and uncontroverted evidence of his failure to re-register with the Office of Court Administration (hereinafter OCA) for four consecutive registration periods.

On or about March 13, 2006, the Grievance Committee opened a sua sponte investigation against the respondent based on his failure to re-register, as required by Judiciary Law § 468-a and Part 118.1 of the Rules of the Chief Administrator of the courts, for three registration periods. By letter dated March 13, 2006, sent to the business address the respondent had last listed with OCA, the Grievance Committee directed the respondent to re-register forthwith, submit proof of same, and submit a written response within 30 days explaining his failure to re-register. The Grievance Committee reminded the respondent that failure to comply with the attorney registration requirements could result in disciplinary action and that an unexcused failure to reply to the sua sponte complaint constituted professional misconduct independent of the merits of the underlying complaint. That letter was returned to the respondent by the United States Postal Service marked: "Moved-Return to Sender."

By letter dated March 24, 2006, sent to the respondent's home address, the Grievance Committee repeated its directive contained in the earlier letter dated March 13, 2006. Although the March 24, 2006, letter was not returned to the Grievance Committee, no response was received from the respondent and he failed to re-register.

By certified letter dated June 9, 2006, sent to the respondent's home address, the respondent was directed to comply within 10 days and to confirm his current registration status. Although the respondent signed for receipt of the certified letter on June 15, 2006, he failed to re-register or to reply to the Grievance Committee.

By letter dated July 26, 2006, personally delivered to the respondent on August 2, 2006, the Grievance Committee afforded the respondent one final opportunity to reply to its communications regarding the status of his attorney registration. The Grievance Committee directed the respondent to submit, within 10 days, a written answer explaining his failures to re-register and to comply with its prior letters, and reminded him that an unexcused failure to comply with a lawful request of the Grievance Committee is grounds for his immediate suspension. The respondent failed to comply or to re-register.

On October 16, 2008, the Grievance Committee personally served the respondent with a judicial subpoena, dated October 2, 2008, directing him to appear at its offices on October 28, 2008, to give testimony. On or about October 24, 2008, the Grievance Committee received an attorney registration form ostensibly signed by the respondent and a copy of a check from the respondent payable to the New York State Office of Court Administration, dated October 23, 2008, in the amount of $350.

Although the respondent did not appear on October 28, 2008, pursuant to the subpoena, he appeared at the Grievance Committee's offices on October 29, 2008. The respondent stated that he had misread the date on the subpoena, had received the Grievance Committee's prior letters and intended to respond, had filed a registration form along with partial payment of his delinquent registration fees, would pay the balance when able, and would submit a written answer to the sua sponte complaint.

By letter dated January 26, 2009, personally delivered to the respondent's home address on January 28, 2009, the Grievance Committee advised the respondent that OCA had no record of receiving his registration form and that their records continue to reflect his status as delinquent for four consecutive registration periods from 2002 through 2009. The Grievance Committee directed the respondent to submit a written response within 10 days and advised that his failure to comply with the attorney registration provisions would result in disciplinary action. The respondent still failed to comply.

To date, OCA records reflect that the respondent failed to re-register as an attorney for the 2002-2003, 2004-2005, 2006-2007, and 2008-2009 biennial registration periods.

Although the respondent admitted service of the Grievance Committee's order to show cause on June 11, 2009, he has failed to submit any reply.

In view of the respondent's disciplinary history of similar misconduct and his persistent pattern of failing to cooperate, the Grievance Committee's motion is granted in its entirety without opposition. The respondent is suspended pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii) on the ground that he constitutes an immediate threat to the public, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him based on the petition dated June 3, 2009, the respondent is directed to submit an answer within 20 days, and the issues raised are referred to a Special Referee to hear and report, with a report to be submitted within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda.

PRUDENTI, P.J., MASTRO, RIVERA, SKELOS and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court