In re Avanzino

73 A.D.2d 340, 426 N.Y.S.2d 568, 1980 N.Y. App. Div. LEXIS 10055

Opinion

OPINION OF THE COURT

Per Curiam.

The respondent was admitted to practice by this court on June 22, 1949. In this proceeding to discipline him for professional misconduct, the petitioner moves to confirm the report of the Referee to whom the issues were referred for hearing and report. The respondent cross-moves to confirm in part and disaffirm in part said report.

The Referee sustained a charge that the respondent failed to file nine quarterly employer’s withholding Federal tax returns. This failure to file did not result from any activity by the respondent in relation to his practice of law, but related to a family-owned business.

After reviewing all of the evidence we are in agreement with the Referee’s report and therefore grant the petitioner’s motion to confirm said report. The cross motion is granted to the extent that it seeks to confirm the report and is otherwise denied.

In determining an appropriate measure of discipline we have taken into consideration the respondent’s prior unblemished record, and the facts that all taxes, interest and penalties have been paid, that the respondent fully co-operated throughout these proceedings, that these problems arose out of a family business and not from the practice of law, and that during this period of time, the respondent experienced serious health problems. Accordingly, the respondent should be, and he hereby is, censured for his misconduct.

Mollen, P. J., Hopkins, Damiani, Titone and Gibbons, JJ., concur.