Appellate Division: Second Judicial Department

M123831

E/ct

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

DANIEL D. ANGIOLILLO, JJ.

2011-01779 In the Matter of Seth M. Gunar, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District; petitioner, Seth M. Gunar, respondent. (Attorney Registration No. 2829547)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Ninth Judicial District (1) to suspend the respondent from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest in that he has failed to comply with the lawful demands of the Grievance Committee made in connection with an investigation of a complaint of professional misconduct and other uncontroverted evidence of professional misconduct; (2) to authorize it to institute and prosecute a disciplinary proceeding against the respondent based on a verified petition dated February 17, 2011; (3) to direct the respondent to submit an answer within 20 days; and (4) to direct that a hearing be held before a Special Referee appointed to hear and report with respect to each of the issues raised by the verified petition and any answer thereto. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Third Judicial Department on July 22, 1997.

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

ORDERED that the motion is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), the respondent, Seth M. Gunar, 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, Seth M. Gunar, 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, Seth M. Gunar, 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 Ninth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Seth M. Gunar, based on the verified petition dated February 17, 2011; and it is further,

ORDERED that Gary L. Casella, Chief Counsel, Grievance Committee for the Ninth Judicial District, Crosswest Office Center, 399 Knollwood Road, Suite 200, White Plains, NY 10603, 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, Seth M. Gunar, shall serve an answer upon the petitioner and the Special Referee, and file the original answer in the Office of the Clerk of the Court; and it is further,

ORDERED that the issues raised by the verified petition and any answer thereto are referred to Frank M. Headley, Jr., Esq. c/o Bertine, Hufnagel & Headley, 700 White Plains Road, Scarsdale, N.Y. 10583, 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; and it is further,

ORDERED that if the respondent, Seth M. Gunar, 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 comply with the lawful demands of the Grievance Committee for the Ninth Judicial District (hereinafter Grievance Committee) made in connection with an investigation of a complaint of professional misconduct and other uncontroverted evidence of professional misconduct.

During the course of an investigation into an unrelated matter, the Grievance Committee became aware that the respondent's attorney registration was delinquent and that he no longer maintained an office for the practice of law at the New York address set forth in the records of the Office of Court Administration (hereinafter OCA). Rather, the respondent provided the Grievance Committee with his home address and a current mailing address in New Jersey. By letter sent to the respondent's current mailing address on May 13, 2010, the Grievance Committee advised the respondent that his attorney registration was delinquent and asked him to provide proof that he had brought his registration up-to-date. The respondent did not comply.

The Grievance Committee thereafter initiated a sua sponte investigation, pursuant to § 691.4 of the Rules Governing the Conduct of Attorneys of the Appellate Division, Second Judicial Department (22 NYCRR 691.4), based upon the respondent's delinquent attorney registration and/or failure to change his registered address with OCA, as required. On May 28, 2010, the Grievance Committee mailed a copy of the sua sponte complaint to the respondent's current mailing address. The letter requested that the respondent submit a written answer within 10 days explaining his failure to re-register and, within 45 days, provide proof of compliance with the registration requirement. By letter dated June 11, 2010, the respondent advised that he had requested the appropriate forms from OCA and that he would provide proof of re-registration within the specified 45 days. However, he failed to do so.

On July 20, 2010, the Grievance Committee sent a follow-up letter to the respondent's current mailing address by certified mail, return receipt requested. Said letter advised that if the respondent did not provide proof of re-registration within 10 days, the Grievance Committee would have no choice but to seek his immediate suspension from the practice of law in New York. The respondent neither complied with the Grievance Committee's request nor communicated with the Grievance Committee further.

On or about October 13, 2010, the Grievance Committee issued an Admonition to the respondent for failing to re-register with OCA. Said Admonition was conditioned upon the respondent providing proof of his re-registration within 30 days. The respondent was advised that if he failed to provide proof of his re-registration, as directed, the Grievance Committee would seek his immediate suspension from the practice of law. The respondent neither provided proof of his re-registration within 30 days, as directed, nor contacted the Grievance Committee.

In a letter sent to the respondent's current mailing address on January 24, 2011, the respondent was advised that, unless he provided proof of his re-registration and payment of the required registration fee by February 10, 2011, the Grievance Committee would move for his immediate suspension from the practice of law, as well as for the institution of a disciplinary proceeding against him. Since that time, the respondent has neither contacted the Grievance Committee nor re-registered with OCA, as required.

The proposed petition annexed to the Grievance Committee's motion contains two charges of professional misconduct alleging that the respondent has engaged in conduct prejudicial to the administration of justice, in violation of Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4(d), by failing to re-register as an attorney with OCA, and that he has engaged in conduct adversely reflecting on his fitness as a lawyer, in violation of Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4(h), by failing to cooperate with the lawful demands of the Grievance Committee. The respondent has neither opposed the Grievance Committee's motion nor submitted any response relative thereto. Based upon the foregoing, the motion is granted, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him, and the matter is referred to a Special Referee to hear and report.

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

ENTER:

Matthew G. Kiernan

Clerk of the Court