IN RE: Daryl C. McNICHOLAS (1999)

By decision and order of this court, dated December 7, 1998, the respondent was suspended from the practice of law, pursuant to Judiciary Law § 90(4)(f), as a result of his conviction on May 26, 1998, in the Supreme Court, Suffolk County, of petit larceny in violation of Penal Law § 155.25, a class A misdemeanor.   He was sentenced to a conditional discharge of one year.   The order dated December 7, 1998 authorized the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent.   The Grievance Committee was directed to serve a petition within 30 days, the respondent was directed to serve an answer to the petition within 10 days, and the issues raised were referred to the Honorable Edwin J. Loewy, as Special Referee to hear and report.

After repeated, unsuccessful efforts to serve the respondent personally, the court authorized substituted service upon the respondent by affixing a copy of the petition to the door of his last known residence and by mailing copies to him via regular mail.   Although duly served on February 3, 1999, the respondent has failed to file an answer to the petition.

The Grievance Committee now moves for a default judgment against the respondent on the ground that he has failed to serve and file an answer to the petition.   The respondent has failed to submit any reply.

Based on the foregoing, the respondent is in default and the charges against him must be deemed established.   The Grievance Committee's motion to impose discipline upon the respondent on the basis of his default is, therefore, granted.   The respondent is disbarred on default and his name is stricken from the roll of attorneys and counselors-at-law, effective immediately.

ORDERED that the petitioner's motion to impose discipline upon the respondent based upon his failure to appear or answer is granted;  and it is further,

ORDERED that, pursuant to Judiciary Law § 90, effective immediately, the respondent, Daryl C. McNicholas, is disbarred and his name is stricken from the roll of attorneys and counselors-at-law;  and it is further,

ORDERED that the respondent shall continue to comply with this court's rules governing the conduct of disbarred, suspended, and resigned attorneys (22 NYCRR 691.10);  and it is further,

ORDERED that, pursuant to Judiciary Law § 90, effective immediately, Daryl C. McNicholas is commanded to continue to desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law.

PER CURIAM.