Appellate Division: Second Judicial Department

M40349

S/nal

A. GAIL PRUDENTI, P.J.

ANITA R. FLORIO

HOWARD MILLER

ROBERT W. SCHMIDT

REINALDO E. RIVERA, JJ.

2006-00380 In the Matter of Joseph G. Amato, an attorney and counselor-at-law. Grievance Committee for the Second and Eleventh Judicial Districts, petitioner; Joseph G. Amato, respondent. (Attorney Registration No. 2649010)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Second and Eleventh Judicial Districts for an order: 1) suspending the respondent from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), upon a finding that he is guilty of professional misconduct immediately threatening the public interest in that he has failed to submit written answers to complaints of professional misconduct filed against him and that he has failed to comply with the lawful demands of the Grievance Committee in connection with an investigation; 2) authorizing the Grievance Committee to institute and prosecute a disciplinary proceeding based upon the petition, dated December 29, 2005, which is annexed to the Grievance Committee's Order to Show Cause; 3) directing the respondent to submit an answer to the petition; and 4) referring the issues raised by the petition and answer to a Special Referee to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on January 18, 1995, under the name Joseph G. Amato.

Upon the papers filed in support of the motion and no papers having been submitted in opposition thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i), the respondent Joseph G. Amato, is immediately suspended from the practice of law in the State of New York, pending further order of the court; and it is further,

ORDERED that the respondent shall promptly comply with this court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this court, the respondent, Joseph G. Amato, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law of 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 the Grievance Committee for the Second and Eleventh Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this court against Joseph G. Amato, based on the petition dated December 29, 2005; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel to the Grievance Committee for the Second and Eleventh Judicial Districts, Renaissance Plaza, 335 Adams Street, Suite 2400, Brooklyn, N.Y. 11201-3745, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that within 20 days after service upon him of a copy of this decision and order, the respondent shall serve an answer upon the petitioner and the Special Referee, and shall file the original answer in the office of the Clerk of this court; and it is further,

ORDERED that the issues raised by the petition and any answer thereto are referred to the Honorable John A. Monteleone, a retired Justice of the Supreme Court, 16 Court Street, 18th Floor, Brooklyn, N.Y. 11241, as Special Referee to hear and report within 60 days after the conclusion of the hearing on the submission of post-hearing memoranda; and it is further,

ORDERED that if the respondent, Joseph G. Amato, 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 691.10(f).

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate with the Grievance Committee.

By letter dated November 5, 2004, the Grievance Committee advised the respondent that he was the subject of a sua sponte investigation for failure to re-register as an attorney with the Office of Court Administration (hereinafter OCA), as required by Judiciary Law § 468-a and 22 NYCRR 118.1 of the Rules of the Chief Administrator of the Courts, and directed him to re-register as an attorney and to submit, within 30 days, proof thereof along with an answer explaining his failure to timely comply with attorney registration requirements. The respondent failed to comply.

By letter dated December 20, 2004, sent via first class and certified mail, the Grievance Committee directed the respondent to comply within 10 days and warned that his continued failure to cooperate could result in a motion for his immediate suspension. By letter dated January 5, 2005, the respondent advised the Grievance Committee that he had resigned from the active practice of law and provided a copy of a registration form he had purportedly submitted to OCA. On February 23, 2005, OCA advised the Grievance Committee that the respondent's registration form was rejected and returned to him for failure to sign the verification.

By letter dated February 28, 2005, the Grievance Committee directed the respondent to resolve his registration with OCA and to provide evidence thereof within 15 days. The respondent still failed to submit an answer or request additional time in which to comply.

By letter dated January 26, 2005, the Grievance Committee forwarded to the respondent a copy of a complaint from Judith Friedman involving neglect of her legal matter and failure to communicate with her, and directed him to submit an answer within 10 days. The respondent submitted an answer dated February 18, 2005 claiming that he had sent the complainant a "letter of disengagement" and had returned her documents. The respondent's letterhead and return address indicated Brooklyn while the envelope was postmarked from Tampa, Florida.

By letter dated March 1, 2005, the complainant denied the respondent's contentions. By letter dated March 11, 2005, the Grievance Committee directed the respondent to provide, within 10 days, a copy of the "letter of disengagement" and the date upon which he allegedly retired from practice. The respondent failed to comply. The Grievance Committee ascertained that the respondent had obtained a Florida driver's license using a Florida address.

By letter dated April 19, 2005, sent via first class and certified mail, the Grievance Committee again directed the respondent to provide a copy of the letter of disengagement. The Grievance Committee's letter was sent to the Brooklyn address which the respondent had provided on his most recent correspondence, the Staten Island home address he last provided to OCA, and the Florida address he provided to the Florida Department of Motor Vehicles. The letter also directed the respondent to resolve his registration with OCA, to provide evidence thereof by May 2, 2005, and to submit answers to the two pending complaints. The Grievance Committee again warned the respondent that his continued failure to cooperate could result in an application for his immediate suspension. The certified letter sent to the Staten Island address was returned as "attempted-not known" and the other certified letters were returned unclaimed. However, the letters sent via first class mail were not returned and were, presumably, delivered.

By letters dated April 15, 2005, the Grievance Committee directed the respondent to submit answers to complaints from Linda Zamplione, alleging failure to timely commence a personal injury action and abandonment of her case, and Ann Elie, alleging abandonment, within 10 days. The letters were again mailed to the Brooklyn, Staten Island, and Florida addresses. Only the letter sent to Staten Island was returned as undeliverable. The respondent failed to comply.

On May 11, 2005, a Grievance Committee staff member hand-delivered a letter to the respondent at Supreme Court, Richmond County directing him to provide answers to the pending complaints within 10 days. The letter warned the respondent that continuing failure to cooperate would result in a motion for his immediate suspension. The respondent submitted an answer dated May 26, 2005, claiming that he had resigned and addressing only certain issues of the Zamplione and Elie complaints. Although the respondent's letterhead indicated a new Staten Island address, the letter bore a Tampa, Florida postmark.

By letter dated May 25, 2005, sent via first class and certified mail, the Grievance Committee directed the respondent to submit an answer to the complaint of Albina Miceli alleging the respondent's neglect of her legal matter and failure to communicate with her. That letter was sent to the respondent's Brooklyn, new Staten Island, and Florida addresses. Each of the certified letters was returned as unclaimed or refused. None of the first class letters was returned. The respondent still failed to comply.

By letter dated June 2, 2005, sent by first class and certified mail to the respondent's new Staten Island address, the Grievance Committee directed the respondent to appear at its offices on June 27, 2005 to give sworn testimony concerning all open matters. Although the certified letter was returned unclaimed, the first class letter was not. The respondent failed to comply.

By letter dated July 7, 2005, sent via first class and certified mail to the respondent's new Staten Island address, the Grievance Committee directed the respondent to submit an answer to the complaint of Darlene Lewis alleging that the respondent neglected her legal matter. Although the certified letter was returned unclaimed, the first class letter was not. The respondent failed to comply.

By letter dated July 7, 2005, sent via first class and certified mail to the respondent's new Staten Island address, the Grievance Committee directed the respondent to submit an answer to the complaint of Rabia Salem, alleging that the respondent failed to communicate with her for several years and abandoned his practice. Although the certified letter was returned unclaimed, the first class letter was not. The respondent failed to comply.

On July 11, 2005, Grievance Counsel telephoned Saul Edelstein, the respondent's counsel in his matrimonial action pending in the Supreme Court, Richmond County, requesting contact information for the respondent. Mr. Edelstein arranged a three-way conversation during which Grievance Counsel advised the respondent that unless he provided written answers to numerous complaints against him, the Grievance Committee would have no alternative but to move for his immediate suspension. The respondent asked the Grievance Committee to forward additional copies of all prior correspondence to his Florida address. The respondent assured Grievance Counsel that he would submit timely answers to all open complaints.

The Grievance Committee also opened a sua sponte investigation against the respondent for his failure to cooperate in the aforesaid matters. By letter dated July 21, 2005, sent via first class and certified mail to the respondent's Florida address, the Grievance Committee enclosed copies of correspondence and complaints sent to the respondent on November 5, and December 20, 2004, January 26, February 28, March 11, April 15, April 19, May 11, May 25, June 2, and July 7, 2005, advised him of the latest sua sponte investigation, and directed him to provide a separate written answer to each complaint on or before August 8, 2005. The Grievance Committee again warned the respondent that his failure to comply would result in an application for his immediate suspension. Although the certified letter was returned unclaimed, the first class letter was not returned. The respondent still failed to comply.

By letter dated September 28, 2005, sent via first class and certified mail to the respondent's Florida address, the Grievance Committee directed him to reply within 10 days to a complaint from Prima Vera Esposito alleging that the respondent abandoned her case and closed his office, taking her file. The certified letter was returned as "not deliverable as addressed" and "attempted, not known", with a handwritten notation on the envelope that the addressee was no longer at that address. Although the first class letter was not returned, the respondent failed to reply. The Grievance Committee believes that the respondent's father resides at that address.

Annexed to the Grievance Committee's Order to Show Cause is a petition dated December 29, 2005, and containing two charges of professional misconduct based on the respondent's demonstrated pattern and practice of failing to cooperate with the Grievance Committee and failing to re-register as an attorney.

Although the respondent was personally served with the Grievance Committee's Order to Show Cause on January 13, 2006, in Tampa, Florida, he has failed to submit any reply or request additional time in which to do so.

In view of the foregoing, the Grievance Committee's motion is granted, the respondent is immediately suspended from the practice of law, and the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him.

PRUDENTI, P.J., FLORIO, MILLER, SCHMIDT and RIVERA, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court