Appellate Division: Second Judicial Department

M47393

K/nl

A. GAIL PRUDENTI, P.J.

ANITA R. FLORIO

HOWARD MILLER

ROBERT W. SCHMIDT

ROBERT A. SPOLZINO, JJ.

2005-09306 In the Matter of Joseph LaMattina, an attorney and counselor-at-law. Grievance Committee for the Second and Eleventh Judicial Districts, petitioner; Joseph LaMattina, respondent. (Attorney Registration No. 1019983)

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)(ii) upon a finding that he is guilty of misconduct immediately threatening the public interest; 2) authorizing the institution of a disciplinary proceeding against the respondent based upon the petition dated August 14, 2006; 3) appointing a Special Referee to conduct a hearing into the allegations of misconduct; and 4) directing the respondent to answer the verified petition annexed to its Order to Show Cause within 20 days. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on March 5, 1975.

Upon the papers submitted in support of the motion and the papers submitted in opposition thereto, it is

ORDERED that the branch of the motion which is for the respondent's immediate suspension is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(ii), the respondent Joseph LaMattina 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 LaMattina, 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 LaMattina, based on the petition dated August 14, 2006; 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 this order, the respondent shall, if he so desires, serve an amended answer upon the petitioner and the Special Referee, and shall file a copy of the same in the office of the Clerk of this court; and it is further,

ORDERED that the issues raised by the petition and answer 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 expeditiously 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 its further,

ORDERED that if the respondent, Joseph LaMattina, 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 substantial admissions under oath that he committed acts of professional misconduct.

Between September 2, 2005, and November 14, 2005, the Grievance Committee received the following eight complaints against the respondent involving LaMattina & Associates, Inc., and its checking account, "LaMattina & Associates, Inc., Joseph LaMattina Settlement Trust Account" (hereinafter Trust Account).

In a September 2, 2005, complaint, Dorine Robinson stated that in connection with the sale of her house on August 5, 2005, she received a Trust Account check representing a portion of the proceeds of the sale, which was deposited in her account but returned for insufficient funds. The check has not been replaced. Additionally, her underlying mortgage was not satisfied and she is compelled to continue to make $1,878 monthly payments for a house she no longer owns. By letter dated September 12, 2005, the Grievance Committee directed the respondent to submit an answer to this complaint within 20 days and specified Trust Account records covering a six-month period.

In a September 14, 2005, complaint, Patrick Parisi stated that with respect to the August 5, 2005, sale of his home, several Trust Account checks were returned for insufficient funds and those checks had not been replaced. By letter dated September 23, 2005, the Grievance Committee directed the respondent to submit an answer to the complaint within 20 days and specified records covering a six-month period.

In a September 29, 2005, complaint, with respect to the above-referenced sale of Dorine Robinson's house to Cira Verdaguer, Ms. Gregory, the real estate agent, complained that a Trust Account check representing her commission was returned for insufficient funds and the check has not been replaced. By letter dated October 6, 2005, from the Grievance Committee, the respondent was directed to submit an answer to the complaint on or before October 17, 2005, and to produce, on or before October 24, 2005, specified Trust Account records covering a six-month period.

In an October 3, 2005, complaint, with respect to three residential loan transactions, legal counsel to BNC Mortgage, Inc., a mortgage bank in Irvine, California, advised that money wired into the Trust Account was missing and alleged that the respondent "possibly absconded with the funds." By letter dated October 6, 2005, the Grievance Committee directed the respondent to submit a written answer to the complaint on or before October 17, 2005, and to produce, on or before October 24, 2005, specified Trust Account records covering a six-month period.

In an October 11, 2005, complaint, Richard Supple, Esq., who describes himself as the "Settlement Attorney" and "Authorized Representative" of Accredited Home Lenders, Inc. (hereinafter Accredited), advised that Accredited, a mortgage bank in New York, wired money into the Trust Account to fund three residential loan transactions which disappeared. He alleged that the respondent had converted the funds. By letter dated October 17, 2005, the Grievance Committee directed the respondent to submit an answer to the complaint within 10 days.

In an October 25, 2005, complaint, Anna Hamlet stated that with respect to the July 28, 2005, refinancing of her home, a Trust Account check representing the payoff of her underlying mortgage was returned for insufficient funds. Her mortgage had not been satisfied and she alleged that the respondent stole the money. By letter dated November 1, 2005, the Grievance Committee directed the respondent to submit a written answer to the complaint on or before November 14, 2005.

In an October 27, 2005, complaint, Paula Scotland, Esq., Legal Counsel to Finance America, LLP, a mortgage bank in Irvine, California, advised that money it had wired into the Trust Account to fund two residential loan transactions in New York was missing and that the respondent possibly absconded with the funds. By letter dated November 1, 2005, the Grievance Committee directed the respondent to answer the complaint on or before November 14, 2005.

The November 14, 2005, complaint of Vincent J. Conigliaro concerned the refinancing of his property on July 25, 2005. Although Trust Account checks representing his portion of the proceeds of the refinancing had cleared, his underlying mortgage had not been satisfied. He also alleged that the respondent was nowhere to be found. By letter dated November 21, 2005, the Grievance Committee directed the respondent to submit a written answer to the complaint within 10 days.

By letter dated October 6, 2005, to the Grievance Committee, the respondent answered the various complaints. He admitted being a signatory on one checking account but asserted, inter alia, that he never intended nor did he consent that the account be styled as a trust account.

By further letter dated December 1, 2005, the respondent addressed the complaints of Anna Hamlet, Finance America, LLP, and Vincent Conigliaro.

On December 1, 2005, the respondent appeared with counsel and testified under oath, admitting that on March 25, 2004, he and two non-attorneys, Joseph LaForte and Tina LaForte, opened LaMattina & Associates, Inc., Joseph LaMattina Settlement Trust Account, at Victory State Bank on Staten Island. On that day, he executed a signature card for this account which gives his title on the front of the card as "pres." of LaMattina & Associates. On the back of the signature card, his title is described as "sec" with the word "Attorney" inserted under "Type of Business." He also provided the bank with a corporate resolution that he executed that same day whereby he provided a personal guaranty of corporate obligations. When shown the bank records, he identified the signatures as his own. He did not recall inquiring as to the nature of the bank account.

When shown bank signature cards from July 28, 2004, the respondent again identified his signature but had no recollection of signing additional signature cards that day. On the bank card, Tina LaForte is listed as president and Tara Carminiti is listed as vice president, both of whom are non-attorneys. He conceded that he did not review any monthly statements generated by Victory Bank.

The respondent further admitted that he was paid on a monthly basis and received 13 checks between the summer of 2004 and August 2005, in various amounts from $3,500 to $7,900, totaling approximately $85,000. He was told that he was paid at a rate of $75 per closing. He admitted that he never attended any closing, he never did any legal work for LaMattina & Associates, he never dealt in any real estate transactions and he never supervised anyone involved with LaMattina & Associates.

The respondent acknowledged that he never questioned anyone as to the reason why the payment amounts to him varied or why he was being paid for work he did not perform. He stated that he "just assumed they were farming the work out to other attorneys and I was receiving a commission."

Despite the respondent's denial of any wrongdoing, his substantial admissions during his testimony under oath that he committed acts of serious professional misconduct, establish that he poses an immediate threat to the public interest.

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)(ii), and the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent based upon the petition attached to the order to show cause dated August 14, 2006. In addition, although the respondent submitted an answer to the petition along with his affidavit in opposition to the Grievance Committee's motion, he may, if he so desires, serve an amended answer within 20 days.

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

ENTER:

James Edward Pelzer

Clerk of the Court