Appellate Division: Second Judicial Department

M53086

K/nl

A. GAIL PRUDENTI, P.J.

HOWARD MILLER

ROBERT W. SCHMIDT

STEPHEN G. CRANE

WILLIAM F. MASTRO, JJ.

2007-00863 In the Matter of Eugene A. Cordaro, admitted as Eugene Anthony Cordaro, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Eugene A. Cordaro, respondent. (Attorney Registration No. 1533561)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District for an order: 1) suspending the respondent from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i) and(iii), based upon his failure to respond to its numerous requests for information with respect to investigations of six matters involving him, his failure to comply with a judicial subpoena and judicial subpoenas duces tecum, and uncontroverted evidence that he failed to maintain and preserve client funds in his escrow account and misappropriated client funds entrusted to him as a fiduciary; 2) authorizing it to institute and prosecute a disciplinary proceeding based upon the allegations set forth in the petition dated January 2, 2007; and 3) referring the issues raised by the petition and any answer interposed thereto 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 March 23, 1977, under the name Eugene Anthony Cordaro.

Upon the papers submitted 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) and (iii), the respondent, Eugene A. Cordaro, admitted as Eugene Anthony Cordaro, 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, Eugene A. Cordaro, 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 Tenth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this court, against Eugene A. Cordaro, admitted as Eugene Anthony Cordaro, based on the petition dated January 2, 2007; and it is further,

ORDERED that Rita E. Adler, Chief Counsel to the Grievance Committee for the Tenth Judicial District, 150 Motor Parkway, Suite 102, Hauppauge, N.Y. 11788, 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 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 answer are referred to Peter T. Affatato, Esq., Briarcliffe Building, 1055 Stewart Avenue, Bethpage, N.Y. 11714, as Special Referee to expeditiously 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, Eugene A. Cordaro, admitted as Eugene Anthony Cordaro, 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 and upon uncontroverted evidence of professional misconduct.

The Grievance Committee's application for an interim suspension is predicated upon the respondent's failure to respond to the Grievance Committee's requests to submit written answers to five complaints of professional misconduct, his failure to respond to numerous requests for information with respect to investigations of six matters involving him, his failure to comply with a judicial subpoena and two judicial subpoenas duces tecum, as well as uncontroverted evidence that he failed to maintain and preserve client funds in his European American Bank escrow account and that he misappropriated client funds entrusted to him as a fiduciary. Respondent is the subject of six complaints which were filed with the Grievance Committee between August 25, 2003 and July 3, 2006. In each of those matters, respondent failed to properly cooperate with the Grievance Committee's investigation either by completely failing to answer the complaint or by failing to respond to requests for information and records relating to same. In the matter of Josephine Sardone, the Grievance Committee 's investigation reveals that the respondent misappropriated client funds entrusted to him as a fiduciary and otherwise failed to preserve client funds.

In or about March 1998, respondent was retained by Josephine Sardone in connection with a dispute she had with her brother, Dennis Avitable, regarding their father's estate. The matter was settled for the sum of $80,000 in or about August 2000. The respondent received an $80,000 check from Mr. Avitable dated October 18, 2000, payable to him as attorney. He deposited that sum into his escrow account at European American Bank. Between the time of the deposit of that check on October 25, 2000, and February 13, 2001, the balance in the respondent's escrow account fell below that which he should have preserved on behalf of Ms. Sardone, although he did not draw any checks relevant to that matter. As of January 31, 2001, the balance in that account was only $49,340.38.

On or about February 2, 2001, the respondent received a $24,000 down payment from Thomas McKevitt, payable to him as attorney, which he deposited into his escrow account in connection with an unrelated real estate transaction. On or about February 13, 2001, the respondent misappropriated the McKevitt funds in order to have sufficient funds to pay Ms. Sardone, drawing a check against the escrow account for $72,736 payable to Ms. Sardone. When that check was honored on or about February 16, 2001, the balance in the escrow account was reduced to $678.56. At that time, the respondent should have preserved at least $24,000 in his escrow account based on the McKevitt deposit.

In addition, the respondent obstructed the legitimate function of the Grievance Committee by failing to properly cooperate in its investigation of six complaints.

I. Complaint of Josephine Sardone

The respondent had represented complainant in a probate proceeding. By letter dated September 8, 2003, the Grievance Committee directed the respondent to answer the complaint within 15 days. When the respondent failed to reply, the Grievance Committee sent him a second letter, dated October 3, 2002, demanding an answer, along with an explanation for his failure to cooperate, within five days. The Grievance Committee advised the respondent that it was authorized to move to suspend attorneys who failed to cooperate with its investigation. The respondent still failed to comply.

By certified letter dated October 31, 2003, the Grievance Committee requested the respondent's answer within five days and warned that remedial action would otherwise ensue to compel his cooperation. The Grievance Committee received the respondent's answer on November 13, 2003.

By letter dated March 4, 2004, the Grievance Committee requested copies of certain escrow account records relating to the Sardone complaint. The respondent failed to comply. By certified letter dated April 2, 2004, the Grievance Committee directed the respondent to submit an answer forthwith, together with an explanation for his failure to cooperate. The Grievance Committee further advised the respondent that failure to respond within five days would result in a motion for his immediate suspension. Although that letter was received on April 5, 2004, respondent failed to comply.

By letter dated June 4, 2004, the Grievance Committee again directed the respondent to submit an answer and an explanation for his failure to cooperate and warned that a motion for his suspension would ensue should he fail to respond within five days. The respondent still failed to comply.

On July 29, 2004, the respondent was served with a subpoena duces tecum demanding his appearance on August 12, 2004, with designated files and escrow records. At approximately 9:05 A.M. on August 12th, the respondent left a message at the Grievance Committee's offices that he was ill and unable to appear that day.

By hand-delivered letter dated August 23, 2004, the respondent was directed to produce the escrow records demanded in the previously served subpoena no later than August 31, 2004. The respondent still failed to cooperate.

By letter dated August 31, 2004, the respondent requested an adjournment of his time to appear, citing health reasons. The respondent testified at the Grievance Committee's offices on September 15, 2004, but failed to produce the subpoenaed records.

II. Complaint of Alan Campbell

On or about June 29, 2005, the Grievance Committee received a complaint alleging that the respondent committed professional misconduct by failing to provide a closing statement to Mr. Campbell following his purchase of real property in November 2001. By personally-delivered letter dated August 3, 2005, the Grievance Committee requested an answer and the respondent's entire file relating to the complaint within 10 days. The respondent failed to comply.

By letter dated August 22, 2005, the Grievance Committee asked the respondent to arrange to be examined under oath at its offices and to produce the Campbell file and escrow records. The respondent failed to contact the Grievance Committee in any manner.

On December 16, 2005, the Grievance Committee personally served the respondent with a judicial subpoena and subpoena duces tecum directing his appearance on December 28 to testify and to produce escrow records for the period January 1, 2001 through July 31, 2004. The respondent was granted adjournments until May 3, 2006. On that date, the respondent telephoned the Grievance Committee's offices and advised that he had not retained counsel and would not be appearing on that date.

By letter dated May 5, 2006, personally served on the respondent, the Grievance Committee directed him to appear at its offices on May 17, 2006, with or without counsel, and to produce his escrow records for the period January 1, 2001 through July 31, 2004. On May 10, 2006, the respondent's request a final adjournment of his examination under oath was granted to June 14, 2006. The respondent failed to appear on that date and failed to submit either an answer to the Campbell complaint or the requested escrow records.

III. Complaint of Richard A. Wallace

This complaint, which was received on or about October 20, 2005, alleged that the respondent committed professional misconduct by neglecting to file a post-judgment motion on behalf of Mr. Wallace.

By letter dated May 5, 2006, the Grievance Committee directed the respondent to submit an answer within 10 days. He failed to do so or to contact the Grievance Committee in any manner within the time provided.

IV. Sua sponte complaint

By letter dated November 1, 2005, the Grievance Committee advised the respondent that he was the subject of a sua sponte investigation based upon his failure to re-register as an attorney and pay the required fee, pursuant to Judiciary Law § 468-a and 22 NYCRR § 118.1, for two registration periods between 2002 and 2005. The Grievance Committee directed the respondent to re-register forthwith and to submit proof of compliance, as well as a written explanation for his failure to maintain his current registration, within 30 days. On or about December 5, 2005, that letter was returned to he Grievance Committee by the United States Postal Service stamped "Moved, Left No Address." The respondent was personally served with a copy of the November 1, 2005 letter on or about May 9, 2006. He failed to comply or to contact the Grievance Committee in any manner.

V. Complaint of William Naveira

This complaint, which alleged that the respondent failed to carry out his professional responsibilities in that he failed to initiate probate proceedings after the death of complainant's father, was received by the Grievance Committee on or about November 15, 2005. By letter dated May 5, 2006, which was personally served on respondent, the Grievance Committee directed him to submit a written response within 10 days. The respondent failed to do so or to contact the Grievance Committee in any manner within the time provided or at any time thereafter.

VI. Complaint of Caroline Belotte

This complaint, which alleged that the respondent committed professional misconduct by neglecting the complainant's matrimonial matter, was received by the Grievance Committee on or about July 3, 2006. By personally-delivered letter dated July 10, 2006, the Grievance Committee directed the respondent to submit an answer within 15 days. The respondent failed to comply or to contact the Grievance Committee in any manner within the time provided or at any time thereafter.

Based on the bank statements which demonstrate that on two separate occasions between October 2000 and February 2001, the respondent's escrow account balance fell below the amount he was required to be preserving on behalf of his clients, and the documented evidence of the respondent's multiple failures to cooperate with its investigations, the Grievance Committee has moved for the respondent's interim suspension.

Although personally served with the motion papers by the Grievance Committee, the respondent failed to interpose an answer or to request additional time to do so.

Under the circumstances, the Grievance Committee's motion is granted, the respondent is suspended pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), pending further order of this court, and the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him.

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

ENTER:

James Edward Pelzer

Clerk of the Court