Payback

The dismissal of a disbarred attorney’s complaint against the Lawyers’ Fund for Client Protection of the State of New York has been affirmed by the New York Appellate Division for the Third Judicial Department

Plaintiff was admitted to the practice of law in this state in 1994. In 2013, he pleaded guilty to two counts of grand larceny in the second degree and one count of forgery in the second degree, and was later disbarred (Matter of Grossbarth, 113 AD3d 14, 17 [2d Dept 2013]). Pursuant to his plea agreement, plaintiff admitted to stealing over $1 million from various clients, and he was sentenced to a term of incarceration and ordered to pay restitution. In 2021, plaintiff submitted an application to the Appellate Division, Second Department seeking to be reinstated to the practice of law, and he provided the requisite notice to defendant, a judicial agency created to safeguard the integrity of the legal profession by reimbursing losses caused by the dishonest conduct of New York attorneys. Through a February 2021 letter, defendant opposed plaintiff’s reinstatement, explaining that plaintiff had not fully repaid defendant for reimbursements it had made in connection with plaintiff’s dishonest conduct. Following receipt of that letter, plaintiff withdrew his application. When plaintiff again sought reinstatement in May 2021, defendant opposed his application on the same grounds.

Here, he sought a declaratary judgment that he had made full restitution.

In May 2022, plaintiff commenced the instant action for declaratory judgment, seeking a declaration that he had made full and complete restitution to defendant and to preclude defendant from asserting otherwise and from opposing plaintiff’s reinstatement on those grounds.

The court

Plaintiff’s assertion that defendant should be equitably estopped from claiming the statute of limitations defense is unpreserved, as plaintiff raises it for the first time on appeal (see Picinich v New York Cent. Mut. Fire Ins. Co., 216 AD3d 1232, 1233 [3d Dept 2023]) and, in any case, such contention lacks merit (see Matter of Saferstein v Lawyer’s Fund for Client Protection, 298 AD2d 726, 727-728 [3d Dept 2002], lv denied 99 NY2d 505 [2003]). Plaintiff’s remaining arguments, to the extent not expressly addressed herein, have either been rendered academic or have been examined and found to lack merit.

(Mike Frisch)