                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 21, 2016                     D-24-16
___________________________________

In the Matter of JOSEPH H.
   OSWALD, a Disbarred
   Attorney.

COMMITTEE ON PROFESSIONAL
   STANDARD,                                 MEMORANDUM AND ORDER
                    Petitioner;                    ON MOTION

JOSEPH H. OSWALD,
                     Respondent.

(Attorney Registration No. 2002699)
___________________________________


Calendar Date:   March 7, 2016

Before:   McCarthy, J.P., Rose, Lynch and Devine, JJ.

                              __________


      Monica A. Duffy, Committee on Professional Standards,
Albany (Michael G. Gaynor of counsel), for petitioner.

      Law Offices of Timothy J. O'Connor, Albany (Timothy J.
O'Connor of counsel), for respondent.

                              __________


Per Curiam.

      Respondent was disbarred by this Court in 2007 (46 AD3d
1327 [2007]). By order entered January 14, 2016, we denied
respondent's application for reinstatement (135 AD3d 1154
[2016]). Respondent now moves for reargument or, in the
alternative, for permission to appeal to the Court of Appeals
from this Court's order.
                              -2-                D-24-16

      Initially, we are unpersuaded by respondent's primary claim
that reargument should be granted because he was allegedly
unfairly denied access to a background memorandum supplied to the
subcommittee of the Committee on Character and Fitness that was
prepared by this Court's staff. Significantly, respondent was
appropriately provided the final report from the subcommittee,
which recommended his reinstatement by a vote of 2 to 1 (see
Matter of Citrin, 94 NY2d 459, 464-465 [2000]). Prior to any
hearing, subcommittee members are allowed access to a
reinstatement applicant's disciplinary file. The challenged
staff memorandum recites the facts in respondent's disciplinary
file leading up to the 2007 order of disbarment and summarizes
the contents of his reinstatement application then pending before
the Court. Notably, the background memorandum prepared by staff
for the subcommittee's convenience is not included with the
information reviewed by the Court in determining a reinstatement
application (see generally Matter of Anonymous, 97 NY2d 332,
334-335 [2002]). Accordingly, any claim that this Court unfairly
considered nondisclosed information in considering the
reinstatement application has no basis. Respondent's arguments
on this point all stem from a factual matter mentioned in the
subcommittee's final report, which cites the background
memorandum – not the disciplinary file – as the source of that
fact. Notably, respondent acknowledges in his affirmation to the
subject motion that the fact cited in the subcommittee report is,
in fact, a matter that he previously testified to under oath
during a 2007 examination before petitioner and was included in
his disciplinary file. The subcommittee had access to
respondent's disciplinary file and could just as easily have
cited that examination transcript as the source of the
information rather than the background memorandum. Accordingly,
we find no evidence to support respondent's claim that he was
prejudiced or treated unfairly by the reference he cites in the
final subcommittee report.

      Turning to the balance of the contentions raised by
respondent in his motion for reargument, inasmuch as respondent
has not demonstrated that this Court "'overlooked or
misapprehended the relevant facts, or misapplied any controlling
principle of law'" (Adderley v State of New York, 35 AD3d 1043,
1043-1044 [2006], quoting Foley v Roche, 68 AD2d 558, 567; see
                              -3-                  D-24-16

Matter of Dambrowski v Dambrowski, 8 AD3d 913, 915-915 [2004]),
his motion for reargument is denied.

      Lastly, regarding respondent's request – in the alternative
– for permission to appeal to the Court of Appeals, we find no
basis to grant such relief on this record. Notably, this Court's
order was a final one and, therefore, permission to appeal may be
obtained directly from the Court of Appeals (see CPLR 5602 [a]).

     McCarthy, J.P., Rose, Lynch and Devine, JJ., concur.



     ORDERED that respondent's motion is denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
