
    [798 NYS2d 364]
    In the Matter of Dominick A. Fusco, a Suspended Attorney, Respondent. Departmental Disciplinary Committee for the First Judicial Department, Petitioner.
    First Department,
    April 26, 2005
    APPEARANCES OF COUNSEL
    
      Thomas J. Cahill, Chief Counsel, Departmental Disciplinary Committee, New York City (Mady J. Edelstein of counsel), for petitioner.
    
      No appearance for respondent.
   OPINION OF THE COURT

Per Curiam.

Respondent was admitted to the practice of law in New York by the First Judicial Department on November 30, 1953. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department.

By order entered December 28, 2004, this Court suspended respondent, pursuant to 22 NYCRR 603.4 (e) (1) (i) and (iii), based upon his failure to cooperate with the Departmental Disciplinary Committee’s investigation and uncontested evidence of professional misconduct. By notice of motion dated February 10, 2005, the Committee seeks a further order, pursuant to 22 NYCRR 603.16 (c) (1), suspending respondent from the practice of law, on the grounds of physical and mental incapacity, for an indefinite period until such time as he is physically and mentally able to participate in the disciplinary proceeding against him.

Following the entry of the order of suspension, the Committee received a letter and attachments (including letters from two physicians treating respondent) explaining that respondent suffers from, inter alia, Alzheimer’s disease, moderate-severe dementia and has had multiple ministrokes.

Accordingly, as respondent’s memory and functioning have deteriorated over the last year, the motion of the Disciplinary Committee should be granted to the extent that the prior finding of noncooperation is vacated and respondent suspended from the practice of law in the State of New York for an indefinite period until such time as he is physically and mentally able to participate in the disciplinary proceeding against him and until further order of this Court, effective nunc pro tunc to December 28, 2004.

Tom, J.E, Mazzarelli, Marlow, Ellerin and Catterson, JJ., concur.

Respondent suspended from the practice of law in the State of New York for an indefinite period until such time as he is physically and mentally able to participate in disciplinary proceedings against him and until further order of this Court, effective nunc pro tunc to December 28, 2004. So much of the per curiam and order of this Court entered on December 28, 2004 (M-4508) incorporating a finding of noncooperation vacated.  