IN THE MATTER OF FISH

No. M3289

70 A.D.3d 36 (2009)

890 N.Y.S.2d 468

2009 NY Slip Op 8084

In the Matter of STUART G. FISH, an Attorney, Respondent. DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT, Petitioner.

Appellate Division of the Supreme Court of New York, First Department.

Decided November 10, 2009.


Attorney(s) appearing for the Case

Alan W. Friedberg, Chief Counsel, Departmental Disciplinary Committee, New York City (Stephen P. McGoldrick of counsel), for petitioner.

No appearance for respondent.

TOM, J.P., FRIEDMAN, BUCKLEY, ACOSTA and FREEDMAN, JJ., concur.


OPINION OF THE COURT

Per Curiam.

Respondent Stuart G. Fish was admitted to the practice of law in the State of New York by the First Judicial Department on August 27, 1984. At all times relevant to the instant proceedings, respondent has maintained an office for the practice of law within the First Judicial Department.

By order entered November 6, 2008, this Court immediately suspended respondent from the practice of law pursuant to 22 NYCRR 603.4 (e) (1) (i), (iii) and (iv) for failure to, inter alia, cooperate with the Departmental Disciplinary Committee's (Committee) investigation concerning several allegations that he had misappropriated funds in connection with real estate closings (Matter of Fish, 57 A.D.3d 112 [2008]).

On February 19, 2009, in Supreme Court, New York County, respondent pleaded guilty to one count of grand larceny in the second degree in violation of Penal Law § 155.40 (1), a class C felony, in full satisfaction of all charges brought against him. Respondent admitted that from on or about November 19, 2007 through on or about February 2008, he stole funds exceeding $50,000 belonging to a former client in connection with a real estate transaction in which respondent represented the client. Respondent also executed a waiver of his right to appeal from the judgment of conviction. On April 24, 2009, respondent was sentenced to five years' probation and ordered to pay $168,732 in restitution.

The Committee now seeks an order pursuant to Judiciary Law § 90 (4) (b) striking respondent's name from the roll of attorneys based upon the fact that he was automatically disbarred as of the date of his conviction as defined by Judiciary Law § 90 (4) (e) (see Matter of Cherry, 51 A.D.3d 119 [2008] [automatic disbarment where guilty of grand larceny in the second degree]; Matter of Caro, 46 A.D.3d 136 [2007] [same]; Matter of Szegda, 42 A.D.3d 193 [2007] [same]; Matter of Lee, 25 A.D.3d 51 [2005] [same]). Respondent has been served with this petition by certified mail and first class mail but has not submitted a response.

Respondent's conviction of grand larceny in the second degree constitutes grounds for automatic disbarment and his name should be stricken from the roll of attorneys (Cherry at 120-121; Matter of Berenholtz, 40 A.D.3d 162 [2007]).

Accordingly, the Committee's petition to strike respondent's name from the roll of attorneys pursuant to Judiciary Law § 90 (4) (b) should be granted nunc pro tunc to February 19, 2009.

Respondent's name stricken from the roll of attorneys and counselors-at-law in the State of New York, nunc pro tunc to February 19, 2009.


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