Opinion
PM-190-22
11-17-2022
In the MATTER OF ATTORNEYS IN VIOLATION OF JUDICIARY LAW § 468–A. Committee on Professional Standards, Now Known as Attorney Grievance Judicial Department, Petitioner; v. Marc David Policastro, Respondent. (Attorney Registration No. 2535003)
Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany, for petitioner. Marc David Policastro, Rumson, New Jersey, respondent pro se.
Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany, for petitioner.
Marc David Policastro, Rumson, New Jersey, respondent pro se.
Before: Lynch, J.P., Pritzker, Reynolds Fitzgerald, Fisher and McShan, JJ.
MEMORANDUM AND ORDER ON MOTION
Per Curiam. Respondent was admitted to practice by this Court in 1993 and was previously admitted in 1990 in his home jurisdiction of New Jersey, where he currently resides and practices law. Respondent was suspended from practice by September 2009 order of this Court for conduct prejudicial to the administration of justice arising from his failure to comply with his attorney registration obligations beginning in 2008 (Matter of Attorneys in Violation of Judiciary Law § 468–a, 65 A.D.3d 1447, 1472, 885 N.Y.S.2d 441 [3d Dept. 2009] ; see Judiciary Law § 468–a [5] ; Rules of Professional Conduct [ 22 NYCRR 1200.0 ] rule 8.4[d]). He cured his registration delinquency in May 2021 and now moves for his reinstatement. Petitioner opposes respondent's application, noting various deficiencies. In an attempt to address petitioner's concerns, respondent submits a supplemental affidavit, together with additional supporting documentation.
Initially, we find that respondent has substantially fulfilled the procedural requirements for an attorney seeking reinstatement to the practice of law from a suspension of more than six months (see Matter of Attorneys in Violation of Judiciary Law § 468–a [Nenninger], 180 A.D.3d 1317, 1318, 116 N.Y.S.3d 920 [3d Dept. 2020] ). To this end, he has, among other things, submitted a sworn affidavit in the proper form set forth in appendix C to Rules for Attorney Disciplinary Matters (22 NYCRR) part 1240 (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.16 [b]) together with the necessary supporting documentation. Moreover, Office of Court Administration records reflect that respondent has cured his registration delinquency and remains current in his registration requirements. Although respondent submits proof of his recent successful passage of the Multistate Professional Responsibility Examination (hereinafter MPRE) (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.16 [b]), he admits his failure to file the instant application within one year of having taken the exam, as required, and accordingly requests a waiver of the MPRE requirement. To qualify for such a waiver, an applicant must demonstrate, as is pertinent here, "that additional MPRE testing would be unnecessary under the circumstances" ( Matter of Attorneys in Violation of Judiciary Law § 468–a [Alimanova], 156 A.D.3d 1223, 1224, 67 N.Y.S.3d 672 [3d Dept. 2017] ; accord Matter of Attorneys in Violation of Judiciary Law § 468–a [Demenge], 206 A.D.3d 1217, 1218, 167 N.Y.S.3d 849 [3d Dept. 2022] ). In view of respondent's recent MPRE passage, his otherwise unblemished disciplinary history, his good standing in his home jurisdiction and his consistent participation in legal ethics training, we find that a waiver is appropriate in this instance and therefore grant his request (see Matter of Attorneys in Violation of Judiciary Law § 468–a [Garcia–Bokor], 203 A.D.3d 1384, 1385, 163 N.Y.S.3d 337 [3d Dept. 2022] ; Matter of Attorneys in Violation of Judiciary Law § 468–a [Whitaker], 199 A.D.3d 1161, 1162, 155 N.Y.S.3d 500 [3d Dept. 2021] ; Matter of Attorneys in Violation of Judiciary Law § 468–a [Colston], 199 A.D.3d 1159, 1160, 155 N.Y.S.3d 649 [3d Dept. 2021] ).
Respondent filed his application for reinstatement prior to the September 1, 2022 effective date of recent amendments to this Court's Rules, which would have otherwise altered the procedural requirements for respondent's motion (see Rules of App.Div., 3d Dept [22 NYCRR] § 806.16 [c]).
Turning to the merits of respondent's application, we first find that respondent's failure to file the required affidavit of compliance following the order of suspension has been cured by his statements included in his appendix C affidavit (see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.15 [c]; Rules for Attorney Disciplinary Matters [22 NYCRR] part 1240, appendix C, ¶ 21; Matter of Attorneys in Violation of Judiciary Law § 468–a [Kelly], 190 A.D.3d 1253, 1254, 139 N.Y.S.3d 728 [3d Dept. 2021] ). Taking respondent's statements and submissions collectively, we further determine that he has satisfied the three-part test applicable to all attorneys seeking reinstatement from suspension or disbarment (see Matter of Attorneys in Violation of Judiciary Law § 468–a [Oncu], 184 A.D.3d 1071, 1072, 126 N.Y.S.3d 578 [3d Dept. 2020] ; Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.16 [a]), inasmuch as he has clearly and convincingly demonstrated his compliance with the order of suspension and the Rules of this Court, that he possesses the requisite character and fitness for the practice of law, and that it would be in the public's interest to reinstate him to the practice of law in New York (see Matter of Attorneys in Violation of Judiciary Law § 468–a [Patel], 187 A.D.3d 1489, 1490, 131 N.Y.S.3d 653 [3d Dept. 2020] ; Matter of Attorneys in Violation of Judiciary Law § 468–a [Wilson], 186 A.D.3d 1874, 1875, 130 N.Y.S.3d 577 [3d Dept. 2020] ; Matter of Attorneys in Violation of Judiciary Law § 468–a [Thompson], 185 A.D.3d 1379, 1381, 128 N.Y.S.3d 689 [3d Dept. 2020] ; compare Matter of Sullivan, 153 A.D.3d 1484, 1484, 59 N.Y.S.3d 731 [3d Dept. 2017] ). Accordingly, we grant respondent's motion.
Lynch, J.P., Pritzker, Reynolds Fitzgerald, Fisher and McShan, JJ., concur.
ORDERED that respondent's motion for reinstatement is granted; and it is further
ORDERED that respondent is reinstated as an attorney and counselor-at-law in the State of New York, effective immediately.