Scant or Contradictory Incapacity Proof Defeats Medical-Indefinite Suspension, While Noncooperation Alone Supports Interim Suspension

Case: Matter of Zweben, 2026 NY Slip Op 02192 (3d Dept Apr. 9, 2026).
Court: Appellate Division, Third Department (Per Curiam).
Proceeding: Attorney discipline—AGC motion for (i) interim suspension for noncooperation and/or (ii) indefinite suspension for medical incapacity.

1. Introduction

Matter of Zweben arises from an Attorney Grievance Committee for the Third Judicial Department (“AGC”) investigation into respondent Andrew Paul Zweben’s attorney escrow account after the bank issued an Overdraft/Dishonored Check Report reflecting six escrow checks issued against insufficient funds. Following notice of respondent’s asserted medical issues through his daughter, AGC granted extensions to respond to its complaint and demands for documentation, but the eventual submission was materially deficient.

The motion presented two distinct remedial paths:

  • Interim suspension under 22 NYCRR § 1240.9(a)(3) based on default in responding to AGC’s repeated and lawful demands.
  • Indefinite suspension for medical incapacity under 22 NYCRR § 1240.14(b) on the theory that respondent’s condition rendered him unable to practice law.

The key issues were (i) what showing is sufficient to support a medical-incapacity suspension when the record contains only limited, informal communications, and (ii) whether failure to cooperate—standing alone—can constitute conduct “immediately threatening the public interest” warranting interim suspension.

2. Summary of the Opinion

The Third Department denied AGC’s request for an indefinite medical-incapacity suspension because the record contained only two emails from respondent’s daughter that suggested serious medical issues but also stated it was “crucial” respondent maintain the ability to practice law. The Court found the “scant” record supported “contradictory but equally plausible inferences” about incapacity and therefore did not justify an incapacity-based indefinite suspension.

The Court granted AGC’s alternative request for interim suspension, holding that respondent defaulted in substantially complying with AGC’s repeated lawful demands for escrow-related information and documentation, and that such noncooperation constitutes professional misconduct that immediately threatens the public interest and jeopardizes the disciplinary system’s effectiveness.

Importantly, the Court made the interim suspension without prejudice to respondent seeking to convert the suspension to a medical-incapacity suspension upon submission of sufficient medical proof under 22 NYCRR § 1240.14(b), and warned that failure to respond/appear within six months may result in disbarment without further notice.

3. Analysis

3.1. Precedents Cited

A. Medical incapacity: medical evidence not strictly required, but the Court looks for credible assurance of incapacity

  • Matter of O'Phelan (225 AD3d 1095 [3d Dept 2024]) and Matter of Scharf (219 AD3d 1602 [3d Dept 2023]) were cited for the proposition that AGC is not obligated to support an incapacity application with medical evidence. Yet, the Court also referenced these cases for the practice of considering credible information that gives the Court “assurance” of incapacity.
  • Matter of Purser (195 AD3d 1146 [3d Dept 2021]) and Matter of Hall (171 AD3d 1446 [3d Dept 2019]) similarly reinforce that formal medical proof is not a categorical prerequisite, but that the Court evaluates whether the record reliably demonstrates incapacity.
  • Matter of Roussin (208 AD3d 174 [1st Dept 2022]) was cited as an example of the type of credible assurance that may support incapacity findings, including materials such as physician correspondence, healthcare-proxy/power-of-attorney communications, or foreign orders premised upon incapacity.

How these cases influenced the result: They framed a two-part approach: (1) AGC need not always submit formal medical evidence, but (2) the Court still expects credible, non-contradictory proof sufficient to assure the Court that the respondent is incapacitated. In Matter of Zweben, the limited emails did not provide that assurance and, instead, pointed in competing directions.

B. Interim suspension: noncooperation itself is an immediate public-interest threat

  • Matter of Figueroa (241 AD3d 1670 [3d Dept 2025]) was used to articulate the policy rationale: failure to cooperate and comply with AGC lawful demands both constitutes misconduct immediately threatening the public interest and jeopardizes the disciplinary system.
  • Matter of Brown (232 AD3d 981 [3d Dept 2024]) supplied the critical doctrinal point that “the mere failure to comply with a lawful demand of AGC during its investigation is sufficient to form the basis for a suspension,” underscoring that the suspension predicate can be noncooperation alone, even without adjudicating the underlying escrow issues.
  • Matter of Fischer (239 AD3d 1229 [3d Dept 2025]) and Matter of Krinsky (195 AD3d 1149 [3d Dept 2021]) were invoked to support a finding of default where the respondent had notice, time, and opportunity to respond, but failed to substantially comply.
  • Matter of Nestler (193 AD3d 1320 [3d Dept 2021]) reinforced the “jeopardizes the effectiveness” rationale for treating noncooperation as a serious disciplinary threat justifying interim relief.

C. Conversion/medical-incapacity pathway after interim suspension

  • Matter of Russell-Ward (179 AD3d 11 [1st Dept 2019]) and Matter of Co, (148 AD3d 142 [1st Dept 2017]) were cited to support the Court’s directive that respondent may later seek conversion to a medical-incapacity suspension upon presenting sufficient medical proof.

3.2. Legal Reasoning

A. Why the medical-incapacity suspension was denied

The Court applied 22 NYCRR § 1240.14(b), which authorizes an application for a determination that a respondent is incapacitated by “mental disability or condition, alcohol or substance abuse, or any other condition” rendering the attorney unable to practice. Although AGC was not required to submit formal medical evidence, the Court emphasized its general practice of relying on credible proof that provides assurance of incapacity.

Here, the only record materials were two emails from respondent’s daughter. Those emails simultaneously suggested serious medical issues and also suggested it was “crucial” respondent maintain the ability to practice law. The Court treated this as creating “contradictory but equally plausible inferences” and, given the limited and informal evidentiary posture, held the record insufficient for an incapacity finding. In effect, Matter of Zweben operationalizes the Court’s reluctance to impose the special status of medical-incapacity suspension on an ambiguous record, even while acknowledging that strict medical documentation is not always required.

B. Why the interim suspension was granted

The Court then turned to 22 NYCRR § 1240.9(a), which permits interim suspension during an investigation upon a finding of conduct immediately threatening the public interest. Under 22 NYCRR § 1240.9(a)(3), a respondent’s default in responding to AGC’s lawful demands is a recognized predicate.

The record showed:

  • AGC sought information/documentation tied to an escrow investigation triggered by overdraft reporting.
  • Respondent received two time extensions after notice of medical issues.
  • The daughter’s submission was “almost entirely deficient” despite her claimed bookkeeping role and “diligent records.”
  • No further correspondence was received after the daughter indicated she intended to respond on respondent’s behalf.

These facts satisfied the Court that respondent had ample notice and multiple opportunities yet failed to substantially comply. The Court treated that default as professional misconduct threatening the public interest and undermining the disciplinary system—consistent with Matter of Figueroa and Matter of Brown.

C. Tailoring and procedural safeguards

The Court structured relief in a way that preserved procedural and humanitarian flexibility:

  • It expressly left open a later conversion to a medical-incapacity suspension upon “sufficient medical proof” under 22 NYCRR § 1240.14(b).
  • It referenced respondent’s right to request a postsuspension hearing under 22 NYCRR § 1240.9(c).
  • It warned of potential disbarment after six months of nonresponsiveness under 22 NYCRR § 1240.9(b), emphasizing that ongoing noncooperation escalates risk.

3.3. Impact

  • Incapacity applications will be scrutinized for coherence, not merely existence. Even though AGC can proceed without formal medical records, Matter of Zweben shows that ambiguous, informal communications—especially those implying continued capacity—may be insufficient.
  • Noncooperation remains a stand-alone basis for swift interim action. The decision reinforces (and operationalizes) the rule from Matter of Brown that failure to comply with lawful investigative demands can justify suspension without litigating the underlying misconduct allegations at that stage.
  • Escrow-related investigations will continue to be enforced through document-production leverage. Even though the decision does not adjudicate escrow misuse, it underscores that escrow irregularities paired with nonproduction create an “immediate threat” posture in interim proceedings.
  • Pathway for medically impaired attorneys is preserved—but requires proof. The “without prejudice” conversion language encourages respondents (or families/representatives) to supply medical proof to align the disciplinary status with actual capacity, rather than rely on informal assertions.

4. Complex Concepts Simplified

  • Interim suspension: A temporary suspension imposed while an investigation is ongoing, based on a showing of an immediate public-interest threat (here, noncooperation), not a final determination of the underlying charges.
  • Indefinite suspension for medical incapacity: A suspension grounded in inability to practice law due to a disabling condition. It is not a punishment for misconduct; it is a protective status reflecting incapacity.
  • Default in responding to lawful demands: Failure to provide requested information/documents that AGC is authorized to demand. In New York attorney discipline, such default can itself be treated as professional misconduct justifying interim suspension.
  • “Immediately threatening the public interest”: A threshold allowing swift protective action. The Court treats refusal or failure to cooperate as inherently threatening because it blocks oversight and potentially leaves client funds and the public unprotected.
  • “Without prejudice” to conversion: The Court’s ruling does not foreclose later relief; respondent can later ask for medical-incapacity status if supported by adequate proof.

5. Conclusion

Matter of Zweben draws a practical boundary between two disciplinary tools. For 22 NYCRR § 1240.14(b) medical-incapacity relief, the Court may proceed without formal medical records, but it still requires credible, non-contradictory proof that assures incapacity; a scant record supporting competing inferences will not suffice. By contrast, under 22 NYCRR § 1240.9(a)(3), substantial noncompliance with AGC’s lawful investigative demands is itself enough to justify interim suspension as an immediate threat to the public interest and the integrity of the disciplinary system.

The decision’s significance lies in its dual message: medical-incapacity suspensions require a coherent evidentiary showing tailored to incapacity, while the disciplinary system’s investigatory demands remain enforceable through prompt interim suspension even before the underlying escrow issues are adjudicated.