Matter of Simon
2019 NY Slip Op 01077
Decided on February 13, 2019
Appellate Division, Second Department
Per Curiam.
Published by New York State Law Reporting Bureau pursuant to Judiciary
Law § 431.
This opinion is uncorrected and subject to revision before publication in the
Official Reports.

Decided on February 13, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate
Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
MARK C. DILLON
RUTH C. BALKIN
CHERYL E. CHAMBERS, JJ.
2017-01561
[*1]In the Matter of Alan Michael Simon, an attorney and counselor-at-law.
Grievance Committee for the Ninth Judicial District, petitioner; Alan Michael
Simon, respondent. (Attorney Registration No. 1510627)

DISCIPLINARY PROCEEDING instituted by the Grievance Committee for
the Ninth Judicial District. The Grievance Committee commenced a disciplinary
proceeding against the respondent by filing a notice of petition and verified
petition dated February 6, 2017. By decision and order on motion of this Court
dated October 11, 2017, the parties' joint motion for discipline on consent
pursuant to 22 NYCRR 1240.8(a)(5) and for the imposition of a public censure

 was denied. By decision and order on motion dated April 12, 2018, the
respondent's motion, inter alia, for leave to reargue the joint motion was denied.
The respondent was admitted to the Bar at a term of the Appellate Division of
the Supreme Court in the Second Judicial Department on December 18, 1968.

Gary L. Casella, White Plains, NY (Glenn E. Simpson of counsel), for
petitioner.
Richard E. Grayson, White Plains, NY, for respondent.

PER CURIAM.

OPINION & ORDER
The Grievance Committee for the Ninth Judicial District served the
respondent with a verified petition dated February 6, 2017, containing three
charges of professional
misconduct predicated on the factual findings of the New York State
Commission on Judicial Conduct (hereinafter the Commission), which were
sustained by the New York Court of Appeals (see Matter of Simon [State
Commn. on Jud. Conduct] , 28 NY3d 35). In sustaining the factual findings, the
New York Court of Appeals accepted the Commission's recommended sanction
of removal. Following the denial of the parties' joint motion for discipline on
consent, and the denial of the respondent's motion, inter alia, for leave to
reargue, the parties filed a joint statement advising the Court that the pleadings
raise no issues of fact (see 22 NYCRR 1240.8[a][2]). The respondent does not
dispute that he is collaterally estopped from challenging the findings of the
Court of Appeals (see Matter of Alessandro, 100 AD3d 210), and that his case

 consists solely of mitigation. The parties ask the Court to enter an order "as the
Court may deem just and proper."
Charge one alleges that the respondent, a former justice, inter alia, of the
Village Court of the Village of Spring Valley, was removed from the bench,
based on the factual findings made by the Commission, which were sustained
by the New York Court of Appeals, that the respondent engaged in judicial
misconduct, and that by virtue of that judicial misconduct, the respondent
engaged in conduct prejudicial to the administration of justice, in violation of
rule 8.4(d) of the Rules of Professional Conduct (22 NYCRR 1200.0).
By per curiam opinion and order dated October 20, 2016, the Court of
Appeals sustained the Commission's factual determinations and accepted its
recommendation that the [*2]respondent be removed from the bench. The Court
of Appeals held:
"The record reflects that, among other things, [the respondent] used a sanction—a tool meant to
shield' from frivolous conduct—as a sword' to punish a legal services organization for a
perceived slight in an inexcusable and patently improper way. The record is also replete with
instances in which [the respondent] used his office and standing as a platform from which to
bully and to intimidate. To that end, it is undisputed that [the respondent] engaged in ethnic
smearing and name-calling and repeatedly displayed poor temperament—perhaps most
significantly, by engaging in a physical altercation with a student worker."
"Those actions are representative of an even more serious problem. [The respondent]—in what
allegedly was a grossly misguided attempt to motivate —repeatedly threatened to hold various
officials and employees of the Village of Spring Valley in contempt without cause or process.
Those threats exceeded all measure of acceptable judicial conduct' (Matter of Blackburne [State
Commn. on Jud. Conduct, 7 NY3d 213, 221 [2006]), and we are particularly troubled by the
testimony of one court officer, who suggested that [the respondent's] threats were so common
that they became a joke.' The matter may have been a laughing one to that officer, but it was not
to others."
"Significantly, too, [the respondent's] hectoring extended beyond the courthouse. In what
ostensibly was an attempt to undermine a former co-judge and an apparent political adversary,
[the respondent] willfully injected himself into the political process involving the election of an
office other than his own. All of the foregoing actions reflect a pattern of calculated misconduct
that militates against [the respondent's] assertion that the misbehavior complained of will not be
repeated if he is allowed to remain on the bench. [The respondent's] misconduct apparently was
tempered only by the intervention of the Commission, and at the hearing held with respect to this
matter he appeared unrepentant and evasive, testifying falsely on at least two occasions in an
attempt to minimize his misconduct—all of which renders suspect his guarantees of better
behavior" (Matter of Simon [State Commn. on Jud. Conduct], 28 NY3d at 39-40 [citation
omitted]).

 Charge two alleges that the respondent engaged in conduct that adversely reflects on his
fitness as a lawyer, in violation of rule 8.4(b) of the Rules of Professional Conduct (22 NYCRR
1200.0), based on the factual specifications alleged in charge one.
Charge three alleges that the respondent engaged in conduct involving dishonesty, deceit,
fraud, and misrepresentation, in violation of rule 8.4(c) of the Rules of Professional Conduct (22
NYCRR 1200.0), based on the factual specifications alleged in charge one, including but not
limited to the finding of the Court of Appeals that the respondent "testif[ied] falsely on at least
two occasions in an attempt to minimize his misconduct" (Matter of Simon [State Commn. on
Jud. Conduct], 28 NY3d at 39-40).
Based on the above facts that are deemed established under the doctrine of collateral
estoppel, we find that charges one, two, and three are sustained.
In determining the appropriate measure of discipline to impose, we have considered the
respondent's proffered mitigation set forth in the statement submitted to this Court, including that
he "tried, in good faith, to serve as a judge and never intentionally meant to violate the standards
of conduct mandated by the Court of Appeals and the State Commission on Judicial Conduct";
that he "exercised his judgment in good faith" in handling the situation involving the student
worker; that, while he threatened to hold certain individuals in contempt, he never actually held
anyone in contempt; that the various actions he took were meant to protect the integrity and
safety of the court and its personnel from others who were either corrupt, behaved improperly or
were not doing their job; that he "acted in good faith to render substantial justice to all parties";
that the electorate of Spring Valley, in electing him mayor, has shown confidence in him; and
finally, that the appropriate sanction, in his view, is a public censure.
The Court notes that, with the exception of the respondent's statement regarding his election
as mayor of Spring Valley, the respondent advanced similar arguments in defense of
the [*3]charges before the Commission and on appeal before the Court of Appeals. We agree
with the determinations of both bodies that the respondent's arguments lack merit. The Court of
Appeals noted:
"[The respondent] also claims that the Commission ignored the theory of the case that he
presented to it, namely, that he acknowledged that his misconduct was not justified, but that his
motives were to protect the independence and integrity of the court from the undue influence of a

 corrupt mayor and improve its efficiency.' Even assuming the truth of that representation, the
means' by which [the respondent] attempted to effectuate those ends' are unacceptable" (Matter
of Simon [State Commn. on Jud. Conduct], 28 NY3d at 40 n 2).
Based on the findings of the Court of Appeals that the respondent "used his office and
standing as a platform from which to bully and to intimidate, . . . engaged in ethnic smearing and
name-calling and repeatedly displayed poor temperament—perhaps most significantly, by
engaging in a physical altercation with a student worker, . . . repeatedly threatened to hold
various officials and employees of the Village of Spring Valley in contempt without cause or
process, . . . [and] injected himself into the political process involving the election of an office
other than his own" (id. at 39), —misconduct qualifying as "truly egregious" (id. [internal
quotation marks omitted]), we find that a disbarment is warranted (see Matter of Mogil, 250
AD2d 343). Most disturbing, notwithstanding the passage of time, the respondent continues to
lack insight into the effect of his behavior, and continues to fail to recognize the
inappropriateness of his actions or attitudes. The respondent's misconduct, inappropriate and
unacceptable as a judge, is equally inappropriate and unacceptable as an attorney and counselorat-law.
MASTRO, J.P., RIVERA, DILLON, BALKIN and CHAMBERS, JJ., concur.
ORDERED that the respondent, Alan Michael Simon, is disbarred, effective immediately,
and his name is stricken from the roll of attorneys and counselors-at-law; and it is further,
ORDERED that the respondent, Alan Michael Simon, shall comply with the rules governing
the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); and it is further,
ORDERED that pursuant to Judiciary Law § 90, effective immediately, the respondent,
Alan Michael Simon, shall 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-atlaw 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; and it is further,
ORDERED that if the respondent, Alan Michael Simon, has been issued a secure pass by
the Office of Court Administration, it shall be returned forthwith to the issuing agency, and the

 respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR
1240.15(f).
ENTER:
Aprilanne Agostino
Clerk of the Court