In re McGarry

46 A.D.2d 434, 363 N.Y.S.2d 1, 1975 N.Y. App. Div. LEXIS 8510

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 1975
• Status: Published

Opinion

Per Curiam.

Respondent was admitted to the New York Bar in June, 1952. There were two charges leveled against him, both alleging failure to diligently prosecute claims of two separate individual clients.

The first charge relates to a retainer received by respondent in 1962 to recover money for property damage to his client, a Mr. Kelly. The summons and complaint was served in 1965, on the eve of the action being time-barred.

Respondent was twice admonished for failure to prosecute this very same case—once in March of 1967 and once again in February of 1968. The case was ultimately settled by a successor attorney, approximately 10 years after the cause of action arose.

While respondent offered excuses in mitigation of his failure to prosecute, insufficient was shown to justify his inaction, especially in view of the two admonitions to diligently prosecute the case. We accordingly sustain the findings of the Referee as to this charge.

The Referee found insufficient evidence to make a ruling on the second charge, involving a Mr. Garcia, and we concur in that conclusion. Accordingly, the second charge is dismissed.

While we find that respondent is guilty of failing to prosecute the Kelly case, we note in mitigation that the matter was ultimately settled to the satisfaction of the client. However, since respondent had failed to heed two prior admonitions regarding the very same case, we deem it appropriate that respondent should be suspended for a period of six months.

McGivern, P. J., Markewich, Kupferman, Lupiano and Lane, JJ., concur.. .

Respondent suspended from practice as an attorney and counselor at law in the State of New York for a period of six months, effective February 10,1975.