Appellate Division: Second Judicial Department

M51871

K/nl

A. GAIL PRUDENTI, P.J.

ROBERT W. SCHMIDT

STEPHEN G. CRANE

WILLIAM F. MASTRO

ROBERT J. LUNN, JJ.

2006-10544 In the Matter of Herbert M. Kuschner, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Herbert M. Kuschner, respondent. (Attorney Registration No. 1405315)

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, 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 an answer to two complaints sent to him via certified mail and has failed to comply with a lawful demand of the Grievance Committee made in connection with the investigation; 2) authorizing it to institute and prosecute a disciplinary proceeding against the respondent; 3) directing that a hearing be held before a Special Referee; and 4) directing the respondent to submit an answer to the petition, dated October 31, 2006, which is annexed to its Order to Show Cause. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the First Judicial Department on November 30, 1960.

Upon the papers submitted in support of the motion and no papers having been 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), the respondent, Herbert M. Kuschner, 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, Herbert M. Kuschner, 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 Ninth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this court against Herbert M. Kuschner, based on the petition dated October 31, 2006; and it is further,

ORDERED that Gary L. Casella, Chief Counsel to the Grievance Committee for the Ninth Judicial District, 399 Knollwood Rosd, 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 with this court; and it is further,

ORDERED that the issues raised by the petition and any answer thereto are referred to the Honorable Fred L. Shapiro, a former County Court Judge, Westchester County, 108 Village Square, Somers, N.Y. 10589, as Special Referee to hear and report within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda; and it is further,

ORDERED that if the respondent, Herbert M. Kuschner, 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's investigation.

By opinion and order of this court dated August 1, 1994, the respondent was suspended from the practice of law for a period of one year as a result of an earlier disciplinary proceeding involving three charges of professional misconduct. Those charges included the respondent's conviction of the serious crime of offering a false instrument for filing, in violation of Penal Law § 175.30, a class A misdemeanor; failing to file a record of that conviction within 30 days; and engaging in conduct prejudicial to the administration of justice and adversely reflecting on his fitness to practice law, predicated upon the factual allegations of the first two charges. He was reinstated by decision and order on motion of this court dated November 21, 1995.

The present motion emanates from four complaints alleging professional misconduct, including two separate, unrelated grievances, each alleging essentially that the respondent neglected legal matters and failed to refund fees and/or return documentation that had been provided; a sua sponte complaint predicated upon the respondent's failure to maintain his attorney registration with OCA and to pay his biennial registration fees; and an additional sua sponte complaint based on the respondent's failure to comply with a directive issued to him by the Grievance Committee in conjunction with a prior Letter of Admonition. To date, the respondent has failed to submit answers to the neglect complaints, has failed to update his attorney registration, and has failed to submit responses to each of the sua sponte complaints.

I. Sua sponte complaint emanating from Letter of Admonition

At its December 15, 2005, meeting, the Grievance Committee issued a single Letter of Admonition for two separate matters: the complaints of Theodore Dellamano and Floyd Powell. These were based upon findings that the respondent failed to refund unearned fees of $2,200 and $600 that had been paid by the respective complainants. In the Letter of Admonition, the Grievance Committee directed the respondent to provide, within 60 days, proof that he had either refunded the fees or that his former clients had accepted an alternative resolution. The grievance Committee advised the respondent that the failure to comply with those directives could constitute further professional misconduct and that the Grievance Committee reserves the right to take appropriate action. Although that letter was mailed to the respondent's residence and de facto office on or about January 10, 2006, no communication was received within the specified 60-day period.

The Grievance Committee investigator went to the respondent's residence and was advised by the landlord that the respondent had been evicted from his apartment on or about January 26, 2006. The Grievance Committee was able to locate the respondent at the office for Hudson Research. The respondent provided his new residential address in Manhattan.

By letter dated March 22, 2006, the Grievance Committee reiterated its direction to the respondent to provide proof of compliance within 60 days and warned of the consequences of his continued noncompliance. The respondent still failed to comply.

By certified letter dated July 10, 2006, the Grievance Committee advised the respondent that a sua sponte complaint had been authorized against him and directed him to advise it, within 10 days, of his intent to resolve the matter. Although that letter was delivered to the respondent on or before July 11, 2006, he failed to reply.

By letter dated July 31, 2006, sent via certified and regular mails to the respondent's Manhattan residence, the Grievance Committee advised the respondent that in the absence of written answers, the Grievance Committee could move for his immediate suspension. Although the certified letter was delivered on August 3, 2006, the respondent's answer, dated September 9, 2006, was not received until September 27.

II. Complaint of Daniel Trent

The complaint, dated March 22, 2006, alleged that the respondent failed to complete a federal tax matter for which he was retained in or about April 2003 and failed to respond to a request made on October 27, 2003, for the return of documentation and the $600 legal fee. By letter dated April 28, 2006 sent to the respondent at his Hudson Research office, the Grievance Committee directed the respondent to submit an answer within 10 days. By certified letter dated May 25, 2006, the Grievance Committee reiterated its directive that the respondent submit his answer within 10 days of receipt. By certified letter dated July 31, 2006, mailed to the respondent at his Manhattan residence, the Grievance Committee urged the respondent to submit his outstanding answer inasmuch as his failure to do so could lead to a motion for his immediate suspension. Although both certified letters were delivered, the respondent failed to reply.

On September 15, 2006, the Committee directed Grievance Counsel to move for authorization to commence a disciplinary proceeding and for the respondent's immediate suspension. On or about September 27, 2006, Grievance Counsel received a letter from the respondent, dated September 11, 2006, indicating that he would obtain the Trent file that week. The respondent again failed to comply.

On October 4, 2006, Grievance Counsel telephoned the respondent, advised him of the Committee's directive and advised him to submit his outstanding responses as soon as possible. No further communication from the respondent was received. Based upon the unchallenged allegations, the Grievance Committee submits that the respondent neglected a legal matter entrusted to him, in violation of DR 6-101(a)(3), and by failing to return his paperwork and/or refund his legal fee, failed to satisfy his obligations in withdrawing from representation, in violation of DR 2-110(a)(2) and/or (3).

III. Complaint of Henry Rivers

The complaint, dated April 2, 2006, alleged that the respondent failed to complete a federal tax matter for which he had been retained in or about October 2004 and failed to reply to complainant's request for a refund of his $900 legal fee. By letter dated May 5, 2006, sent to the respondent at Hudson Research, the Grievance Committee requested an answer within 10 days. By certified letter dated June 8, 2006, the Grievance Committee reiterated its directive. By certified letter dated July 31, 2006, mailed to the respondent's Manhattan residence, the Grievance Committee urged the respondent to submit his outstanding answer inasmuch as failure to do so could result in a motion for his interim suspension. Despite delivery of the certified letters, no response was received. The Committee thereupon directed Grievance Counsel to move for authorization to commence a disciplinary proceeding and for the respondent's immediate suspension.

On or about September 27, 2006, Grievance Counsel received a letter from the respondent indicating that he would act on the Rivers complaint within the week. After receiving no response from a voice message left for the respondent, Grievance Counsel telephoned the respondent, advised him of the Committee's directive to seek authorization to institute and prosecute a disciplinary proceeding and an immediate suspension, and suggested that the respondent submit his outstanding responses as soon as possible.

Based upon the unchallenged allegations of the Rivers complaint, the Grievance Committee submits that the respondent neglected a legal matter entrusted to him, in violation of DR 6-101(a)(3), and failed to satisfy his obligations in withdrawing from representation, in violation of DR 2-110(a)(3).

IV. Sua sponte complaint involving attorney registration

OCA records reveal that the respondent failed to submit his biennial attorney registration for the 2003-2004 and 2005-2006 periods. Those records reflect an office address in New Rochelle which the respondent ceased to maintain in early 2005.

By letter dated April 28, 2006, the Grievance Committee directed the respondent to submit an answer addressing his failure to comply with registration requirements within 10 days and to submit proof of compliance within 60 days. By certified letter dated May 25, 2006, the Grievance Committee reiterated its directive. By certified letter dated July 31, 2006 sent to the respondent's Manhattan residence, the Grievance Committee urged the respondent to submit his outstanding answer inasmuch as a failure to do so could result in his interim suspension.

At the time of the September 15, 2006 meeting, the respondent's attorney registration remained delinquent and erroneous.

On or about September 27, 2006, the Grievance Committee received a letter from the respondent indicating his belief that he had filed and paid for all registration periods, that his cancelled checks were in the hands of his divorce attorney, and that the respondent would obtain them within a week. No further communications were received.

On October 4, 2006, Grievance Counsel advised the respondent of the Committee's directive to seek authorization for a disciplinary proceeding and advised the respondent to submit his outstanding responses as soon as possible. Although the respondent advised Grievance Counsel that he would telephone the next day, no further communications were received.

A petition containing 12 charges of professional misconduct based on the foregoing allegations is annexed to the Grievance Committee's Order to Show Cause.

Although served with the Order to Show Cause and supporting papers on November 9, 2006, the respondent has failed to submit any reply.

Based on the uncontested allegations set forth by the Grievance Committee, the Grievance Committee's motion is granted, the respondent is suspended pursuant to 22 NYCRR 691.4(l)(1)(i), the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding based on the petition dated October 31, 2006, the respondent is directed to submit an answer to the petition within 20 days after service upon him of the order determining this motion, and this matter is referred to a Special Referee to hear and report.

PRUDENTI, P.J., SCHMIDT, CRANE, MASTRO and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court