IN RE: Michael TOLER (1999)

By opinion and order of this court dated June 23, 1997, the respondent was suspended from the practice of law for a period of five years, commencing July 23, 1997, and continuing until further order of this court.   By subsequent opinion and order of this court dated December 1, 1997, the respondent was censured, based upon an unrelated set of charges.   By decision and order of this court dated January 27, 1999, a third disciplinary proceeding was authorized against the respondent, and the issues raised were referred to the Hon. Ronald J. Aiello, as Special Referee, to hear and report.

The Grievance Committee now moves for a default judgment against the respondent based on his failure to serve and file with the court an answer to the petition.

The decision and order of this court dated January 27, 1999, directed the respondent to serve an answer to the petition within 10 days after his receipt thereof.   After numerous unsuccessful attempts to personally serve the respondent with the petition, the court authorized substituted service by mailing a copy of the petition to the respondent's last known address and affixing a copy of the papers to the door of his actual dwelling place.   Substituted service was duly effectuated on February 28, 1999.   To date, the respondent has failed to serve an answer, nor has he replied to the Grievance Committee's notice of motion to adjudicate him in default.

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, Michael Toler, 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, Michael Toler 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.