Matter of Moss: Interim Suspension for Patterned Noncooperation—Extensions and “Final-Date” Demands Do Not Defeat 22 NYCRR 1240.9(a)

1. Introduction

Matter of Moss (2026 NY Slip Op 03364, 1st Dept May 28, 2026) is an attorney discipline decision in which the Appellate Division, First Department, granted the Attorney Grievance Committee’s (“AGC”) motion for interim suspension under 22 NYCRR 1240.9(a)(1) and (3).

The proceeding arose from a grievance complaint against respondent attorney David L. Moss. The core issue was not the underlying merits of the complaint, but whether respondent’s repeated failures to comply with investigative demands— culminating in a nonappearance at a court-issued subpoenaed Examination Under Oath (EUO) and failure to produce subpoenaed documents—constituted “conduct immediately threatening the public interest” warranting immediate suspension.

Respondent opposed, emphasizing partial compliance (a surreply), personal hardship, and the AGC’s willingness to grant extensions—arguing those circumstances undermined any claim of an “immediate threat” and that the AGC should have issued a “final, date-certain directive” before seeking suspension.

2. Summary of the Opinion

The First Department immediately suspended respondent pursuant to 22 NYCRR 1240.9(a)(1) and (3), holding that the “record in toto” showed a pattern of non-cooperation, including:

• Repeated failures to timely respond to AGC directives, even after multiple extensions and warnings.
• Failure to produce subpoenaed documents by extended deadlines.
• Default on a judicial subpoena by failing to appear for the EUO.
• Failure to provide the requested written explanation for noncompliance and failure to respond after the missed EUO.

The Court rejected respondent’s argument that the AGC had to issue a “final, date-certain directive” to meet its burden, and held that the AGC’s granting of extensions did not waive respondent’s obligations to cooperate or comply with the subpoena. The suspension was ordered “effective immediately, and until further order,” with standard directives under Judiciary Law § 90 and 22 NYCRR 1240.15, and respondent was afforded the opportunity to request a post-suspension hearing under 22 NYCRR 1240.9(c).

3. Analysis

3.1. Precedents Cited

The Court’s decision is best understood as part of the First Department’s established line of cases treating noncooperation with disciplinary investigations—especially disobedience of subpoenas and defaults in compelled testimony— as a stand-alone basis for interim suspension because it threatens the disciplinary system’s ability to protect the public.

Matter of Biniakewitz, 246 AD3d 126 [1st Dept 2025]

Cited by the AGC for the proposition that interim suspension may be warranted even with prior or partial cooperation. In Moss, this point directly answers respondent’s attempt to reframe the record (submission of a surreply; explanation of hardships) as “engagement” sufficient to defeat interim relief. The Court accepted the AGC’s framing: partial steps do not cure the decisive failures—especially subpoena default and continued nonresponsiveness.

Matter of Fox, 197 AD3d 36 [1st Dept 2021]

Matter of Fox serves two roles in Moss. First, it reinforces that noncooperation alone can meet the “immediate threat” standard under 1240.9(a). Second, the Court uses it to reject the notion that the AGC must exhaust progressively stricter warnings or “final deadlines” before moving. The cited pin (“at 41”) underscores that a default on compelled process and failure to comply with lawful investigative demands can justify interim suspension.

Matter of Espinoza, 200 AD3d 21 [1st Dept 2021]

Matter of Espinoza is cited as an example supporting suspension where a respondent’s behavior undermines the disciplinary investigation. In Moss, it bolsters the proposition that the Court will protect the integrity and effectiveness of the disciplinary process through interim measures when a respondent’s conduct obstructs fact-finding.

Matter of Miller, 170 AD3d 1 [1st Dept 2019]

Matter of Miller is part of the First Department’s core authority on interim suspension standards and the kinds of noncooperation that qualify as an immediate public-interest threat. Its inclusion signals that the Court views repeated defaults and failures to comply as inherently serious because they impede regulation of the profession—an institutional harm that is itself “public interest” harm.

Matter of Moreno, 149 AD3d 65 [1st Dept 2017]

Matter of Moreno similarly supports the Court’s approach that when an attorney fails to comply with disciplinary demands, the Court may intervene swiftly. In Moss, it reinforces the key theme: the disciplinary system cannot function if attorneys can ignore subpoenas and requests without immediate consequence.

3.2. Legal Reasoning

The Court’s reasoning tracks the text of 22 NYCRR 1240.9(a), which authorizes interim suspension upon a judicial finding of “conduct immediately threatening the public interest,” and specifies that such a finding may be based upon:

• 1240.9(a)(1): “default in responding to a notice to appear for formal interview, examination, or pursuant to subpoena” (here, the missed EUO under a court-issued subpoena); and
• 1240.9(a)(3): “failure to comply with a lawful demand” of the AGC in an investigation (here, repeated failures to provide demanded materials and explanations and to meaningfully respond).

Three specific doctrinal moves in Moss are noteworthy:

1. “Record in toto” / pattern approach. The Court did not treat each missed deadline as an isolated event; it evaluated the accumulated history—extensions, warnings, partial responses, continued nonproduction, and finally subpoena default—as an integrated pattern demonstrating noncooperation.
2. Extensions do not negate willful noncooperation. Respondent argued that AGC extensions and willingness to reschedule were inconsistent with “immediate threat.” The Court rejected that framing: extensions do not waive obligations, and the threat arises from the respondent’s continued disregard notwithstanding accommodations.
3. No “final, date-certain directive” prerequisite. Respondent’s proposed procedural requirement was expressly declined: the AGC is “not required” to provide a last warning or final deadline to satisfy 1240.9(a). The rule’s trigger is the default/failure itself, as evaluated by the Court in context.

On respondent’s personal-hardship explanation, the Court did not hold that hardship can never be relevant; instead, it credited the AGC’s point that respondent offered no meaningful explanation for the subpoena default and provided insufficient detail to justify the prolonged noncompliance. The Court’s focus remained on the enforceable obligations: appear when subpoenaed, produce required documents, and respond to investigative demands.

3.3. Impact

Matter of Moss reinforces (and makes more explicit) several practical rules likely to shape future disciplinary practice in the First Department:

• Procedural obstruction is itself a public-interest threat. Interim suspension can be based on noncooperation even before the underlying complaint is adjudicated.
• Partial compliance is not a safe harbor. Submitting some responses (e.g., a surreply) does not neutralize the consequences of failing to appear for an EUO or failing to produce subpoenaed documents.
• AGC accommodation does not raise the suspension threshold. Extensions, adjournment offers, or rescheduling efforts do not undermine the AGC’s ability to seek interim relief when the respondent continues to default.
• No “last-chance letter” requirement. Attorneys cannot demand an extra procedural step (a “final, date-certain directive”) as a condition precedent to suspension under 1240.9(a).

The broader effect is to strengthen the enforceability of disciplinary investigations: the Court signals that it will act promptly when an attorney’s conduct threatens the investigatory function, thereby deterring delay tactics and preserving the profession’s regulatory integrity.

4. Complex Concepts Simplified

Interim suspension

A temporary removal of an attorney’s right to practice law, imposed before final resolution of the disciplinary case, to protect the public and the integrity of the process.

“Conduct immediately threatening the public interest”

Conduct that poses an urgent risk to clients, the courts, or the legal system. In this line of cases, obstructing the disciplinary process itself qualifies because it prevents timely investigation of possible misconduct.

Examination Under Oath (EUO)

A compelled questioning session (similar to sworn testimony) used by disciplinary authorities to obtain facts. Failure to appear after being directed—especially under subpoena—can be treated as a serious default.

Subpoena / judicial subpoena

A court-backed command to appear, testify, and/or produce documents. Ignoring it is more than delay; it is disobedience to compulsory process.

Lawful demand

A valid request made by the disciplinary authority in the course of an investigation (e.g., requests for documents, written responses, or explanations). Failure to comply can independently support interim suspension.

5. Conclusion

Matter of Moss confirms a clear operational rule in First Department attorney discipline: a demonstrable pattern of noncooperation—including failure to comply with AGC investigative demands and default on a subpoenaed EUO— constitutes “conduct immediately threatening the public interest” under 22 NYCRR 1240.9(a)(1) and (3). The Court further clarifies that (i) AGC-granted extensions do not excuse compliance or undermine a finding of immediate threat, and (ii) the AGC need not issue a “final, date-certain directive” before seeking interim suspension. The decision strengthens the disciplinary system’s ability to respond swiftly when an attorney’s obstruction prevents effective oversight and public protection.