
    In the Matter of Frank Allen Kelly, a Suspended Attorney, Respondent. Grievance Committee for the Second and Eleventh Judicial Districts, Petitioner.
    Second Department,
    April 9, 1990
    APPEARANCES OF COUNSEL
    
      Robert H. Straus (Diana J. Szochet of counsel), for petitioner.
   OPINION OF THE COURT

Per Curiam.

The respondent was admitted to practice as an attorney by this court on June 15, 1966.

By order of this court dated October 16, 1989, the respondent was suspended from the practice of law in the State of New York based upon a temporary suspension imposed upon the respondent by order of the Supreme Court of Tennessee dated February 9,1989.

By order of the Supreme Court of Tennessee dated July 17, 1989, the respondent was disbarred in the State of Tennessee.

22 NYCRR 691.3 (c) provides that an attorney can be disciplined in the State of New York based upon discipline imposed in another jurisdiction and that the attorney may impose any of three enumerated defenses to the imposition of discipline in the State of New York. The defenses are as follows: "(1) that the procedure in the foreign jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or (2) that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this court could not, consistent with its duties, accept as final the finding of the court in the foreign jurisdiction as to the attorney’s misconduct; or (3) that the imposition of discipline by this court would be unjust.”

The respondent, having been notified that he had a right to demand a hearing at which consideration would be given to any or all of these defenses, failed to oppose this motion to discipline. Accordingly, the petitioner’s motion is granted and the respondent is disbarred in the State of New York, effective forthwith.

Mangano, P. J., Thompson, Bracken, Brown and Eiber, JJ., concur.

Ordered that the petitioner’s motion is granted; and it is further,

Ordered that pursuant to Judiciary Law § 90, effective immediately, the respondent Frank Allen Kelly is disbarred and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,

Ordered that Frank Allen Kelly 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, Frank Allen Kelly is commanded to continue to desist and refrain (1) from practicing law in any form, either as principal or as agent, clerk or employee of another, (2) from appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission or other public authority, (3) from giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) from holding himself out in any way as an attorney and counselor-at-law.  