Anonymous v. Grievance Committee
Opinion of the Court
—Proceeding pursuant to CPLR article 78 in the nature of mandamus to require the respondents to grant the petitioner’s request for a hearing before the full Grievance Committee of the Tenth Judicial District to review its determination to issue a letter of caution.
Adjudged that the petition is denied and the proceeding is dismissed, with costs.
The respondent Grievance Committee of the Tenth Judicial District (hereinafter the Committee) issued a letter of caution to the petitioner, an attorney, advising him that his involvement in a certain business enterprise constituted the practice of law with a nonlawyer, and that his failure to cease such activity could subject him to disciplinary action. The petitioner requested a hearing before the full Committee pursuant to Rules of the Appellate Division, Second Department (22 NYCRR) § 691.6 (a) to review the letter of caution. The Committee granted his request to the extent of granting him a hearing before a three-member subcommittee, which would then report to the full Committee. The petitioner commenced this proceeding in the Supreme Court in which he contends, inter alia, that he is entitled to a hearing before the full Committee under Rules of the Appellate Division, Second Department (22 NYCRR) § 691.6 (a) and that the failure to provide him with such a hearing deprived him of due process of law.
Initially, we agree with the petitioner that the Supreme Court erred in transferring the proceeding to this Court. A CPLR article 78 proceeding should be commenced in the Supreme Court unless a statute provides otherwise (see, Matter of Reitman v Sobol, 225 AD2d 823). Although Judiciary Law § 90 gives the Appellate Divisions exclusive authority to determine what constitutes attorney misconduct (see, Erie County Water Auth. v Western N. Y. Water Co., 304 NY 342, 346, cert denied 344 US 892; Matter of Kuriakose v Evans, 206 AD2d 481), the petitioner here is not seeking review of the merits of the letter of caution. Rather, the petitioner’s claim is in the nature of a writ of mandamus to compel the Committee to comply with a procedural rule. The Supreme Court has subject matter jurisdiction to consider such a claim (see, Taub v Committee on Professional Stds. for Third Judicial Dept., 200 AD2d 74; Matter of Lader v Finnerty, 172 Misc 2d 299; see also,
Mandamus does not lie to compel an act which involves the exercise of judgment or discretion, but only to compel the performance of a ministerial duty, and then only when there exists a clear legal right to the relief sought (see, Matter of Brusco v Braun, 84 NY2d 674, 679). Contrary to the petitioner’s contention, we conclude that the Committee is not required by Rules of the Appellate Division, Second Department (22 NYCRR) § 691.6 (a) to grant his request for a hearing before the full Committee. Instead, it has the discretion to appoint a subcommittee to conduct a hearing to review a letter of caution This interpretation is consistent with Rules of the Appellate Division, Second Department (22 NYCRR) § 691.4 (d), which gives the Committee the authority to appoint subcommittees for the purpose of conducting hearings “as hereinafter authorized”. Moreover, the petitioner’s contention that the denial of his request for a hearing before the full Committee deprived him of due process is without merit, as he clearly received notice of the nature of the complaint against him and was granted a hearing at which he could appear and present witnesses (see, e.g., Matter of Jagiela, 217 AD2d 104, 107; see generally, Mildner v Gulotta, 405 F Supp 182, affd 425 US 901).
We have considered the petitioner’s remaining contentions and find them to be without merit. Since the petitioner has failed to demonstrate a clear legal right to the relief sought, the petition is dismissed. O’Brien, J. P., Thompson, Sullivan and McGinity, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.