Appellate Division: Second Judicial Department

M46704

K/nl

A. GAIL PRUDENTI, P.J.

ANITA R. FLORIO

HOWARD MILLER

ROBERT W. SCHMIDT

ROBERT J. LUNN, JJ.

2006-07149 In the Matter of Nancy E. Cohen, admitted as Nancy Ellen Cohen, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Nancy E. Cohen, respondent. (Attorney Registration No. 2052157)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Ninth Judicial District for an order: 1) suspending the respondent from the practice of law on an interim basis, pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), upon a finding that she is guilty of misconduct immediately threatening the public interest in that she has failed to answer a complaint of professional misconduct and has failed to appear pursuant to judicial subpoena, and that there exists uncontroverted evidence of professional misconduct; 2) authorizing it to institute and prosecute a disciplinary proceeding against her; 3) directing the respondent to answer the petition annexed to the Grievance Committee's Order to Show Cause within ten days after service of the order determining this motion; and 4) appointing 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 First Judicial Department on March 3, 1986, under the name Nancy Ellen Cohen.

Upon the papers submitted in support of the motion and there being no papers submitted in opposition thereto, it is

ORDERED that the motion of the Grievance Committee for the Ninth Judicial District is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), the respondent Nancy E. Cohen 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, Nancy E. Cohen, 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 herself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that the Grievance Committee for the Ninth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this court against Nancy E. Cohen, based on the petition dated July 24, 2006; and it is further,

ORDERED that Gary L. Casella, Chief Counsel to the Grievance Committee for the Ninth Judicial District, 399 Knollwood Road, Suite 200, White Plains, N.Y. 10603, 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 William D. Friedmann, a retired Associate Justice of the Appellate Division, Second Judicial Department, 4 Martine Avenue, White Plains, N.Y. 10606, as Special Referee to hear and report within 60 days after the conclusion of the hearing on the submission of post-hearing memoranda, along with the charges previously referred to him; and it is further,

ORDERED that if the respondent, Nancy E. Cohen, admitted as Nancy Ellen Cohen, 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 her 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 her failure to cooperate with the Grievance Committee's investigation into complaints of professional misconduct against her.

The respondent is the subject of a sua sponte complaint based on the records of the Office of Court Administration (hereinafter OCA) which revealed that she failed to re-register as an attorney for the previous and/or current registration period and/or failed to file a change of address as required. The respondent failed to pay the $300 biennial attorney registration fee for the 2000-2001 registration period, which was due in or about November 2000, and failed to pay for subsequent periods as required. By letter dated March 21, 2005, the Grievance Committee sent the sua sponte complaint to the respondent at her last known OCA address and requested that she submit an answer within 10 days. The Grievance Committee advised the respondent that an unexcused failure to reply constitutes professional misconduct independent of the merits of the complaint and would be treated accordingly. The respondent failed to reply.

By letter dated September 7, 2005, sent via certified and regular mail, the Grievance Committee advised the respondent that it was imperative for her to answer the complaint. Although the certified letter was returned after two delivery attempts, the letter sent via regular mail was not returned by the post office. The respondent still failed to answer.

By letter dated October 11, 2005, the Grievance Committee afforded the respondent a final notice, termed it "imperative" that she submit an answer by November 24, 2005, and warned that failure to comply would result in disciplinary action. The respondent still failed to answer.

The Grievance Committee sent the respondent a further letter informing her that it was imperative that she submit an answer by December 5, 2005 and that she submit proof of her updated registration by January 2, 2006. The Grievance Committee further apprised the respondent that her failure to satisfactorily respond could result in a motion for her immediate suspension. The respondent still failed to answer.

By letter dated December 14, 2005, the Grievance Committee directed the respondent to submit an answer to the complaint and proof of her updated registration by January 9, 2006. It advised her that her failure to comply would leave the Grievance Committee no alternative but to obtain a judicial subpoena from the court for her appearance. The Grievance Committee further apprised the respondent of her options of considering a retirement certification, pursuant to Part 118 of the Rules of the Chief Administrator, or submitting her resignation from the Bar to the Appellate Division, First Department, which is the department of her admission.

In an effort to serve the respondent with a judicial subpoena, the Grievance Committee's investigator visited the respondent at the last known address provided to OCA and was advised by a neighbor that the respondent had moved approximately two months previously. A search of Department of Motor Vehicles records revealed that the respondent had been convicted of an alcohol-related crime and had her license revoked. The Grievance Committee obtained a copy of the certificate of conviction, which revealed that on or about January 4, 2005, the respondent was convicted in the Lewisboro Town Court of operating a motor vehicle while intoxicated, in violation of VTL §1192.03 and harassment 2*, in violation of Penal Law § 240.26(l). The respondent was fined $500 for the VTL offense and $150 for the Penal Law offense, in addition to a six month license revocation, a $190 surcharge, and required attendance at MADD as part of the court's Victim Impact Panel.

The investigator thereafter obtained the respondent's address and personally served her with the subpoena so ordered by this court, which commanded her appearance at the Grievance Committee's offices on June 7, 2006. The respondent failed to appear on that date and failed to request an adjournment.

To date, the respondent has failed to contact the Grievance Committee regarding her non-appearance and has failed to answer the sua sponte complaint or to re-register with OCA.

In view of her flagrant disregard of the Grievance Committee's lawful demands, the instant motion ensued. Although the respondent admitted service of the Grievance Committee's order to show cause on July 27, 2006, she has failed to submit any reply.

Accordingly, the Grievance Committee's motion is granted, the respondent is immediately suspended from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), and the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against her.

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

ENTER:

James Edward Pelzer

Clerk of the Court