Appellate Division: Second Judicial Department

M53730

E/nl

A. GAIL PRUDENTI, P.J.

HOWARD MILLER

ROBERT W. SCHMIDT

STEPHEN G. CRANE

ANITA R. FLORIO, JJ.

2007-00612 In the Matter of Brian Matthew Rosicky, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Brian Matthew Rosicky, respondent. (Attorney Registration No. 2941318)

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 on an interim basis, pursuant to 22 NYCRR 691.4(l)(1)(i), upon a finding that he is guilty of misconduct immediately threatening the public interest; (2) authorizing it to institute and prosecute a disciplinary proceeding against him; (3) directing the respondent to answer the petition dated January 2, 2007, within 20 days after service of the decision and 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 Second Judicial Department on April 14, 1999.

Upon the papers filed in support of the motion and no papers having been filed in opposition or relation 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, Brian Matthew Rosicky, 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, Brian Matthew Rosicky, 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, Brian Matthew Rosicky, 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 or 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 the respondent, Brian Matthew Rosicky, 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 decision and order on motion, the respondent, Brian Matthew Rosicky, 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 Lewis L. Douglass, a retired Justice of the Supreme Court, Kings County, 166-25 Powells Cove Boulevard, Whitestone, N.Y. 11357, 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, Brian Matthew Rosicky, 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 submit written answers to six complaints of professional misconduct and his failure to cooperate with the Grievance Committee's lawful investigations.

The six complaints of professional misconduct filed against the respondent are as follows:

1. The June 28, 2004, complaint of Frank LaBarbera.

In his complaint, Frank LaBarbera alleged that he retained the respondent on or about June 10, 2002, to commence an action against R & R Blacktop Corp. to recover for defects in work performed on his driveway. He complained that the respondent neglected the matter. Upon the Grievance Committee's referral of the matter, the Suffolk County Bar Association, by letter dated July 7, 2004, requested that the respondent answer the complaint within 20 days. The respondent failed to submit an answer or request an extension of time to do so. By letter dated September 3, 2004, the Suffolk County Bar Association again requested that the respondent submit an answer within five days, but he failed to do so and the file was returned to the Grievance Committee.

By letter dated October 25, 2004, the Grievance Committee requested that the respondent submit a written answer to the complaint within 10 days of his receipt of the letter. The respondent again failed to answer.

By letter dated November 15, 2004, sent by certified mail, the Grievance Committee requested that the respondent submit a written answer to the complaint within 10 days of receipt of the letter. The letter was returned by the post office as unclaimed.

By letter dated December 27, 2004, sent by certified mail, the Grievance Committee requested that the respondent submit a written answer within 10 days of receipt of the letter. Once more, the letter was returned by the post office as unclaimed.

By letter dated January 18, 2005, personally served upon the respondent on January 20, 2005, he was asked to submit a written answer to the complaint within 10 days of receipt of the letter. The respondent failed to answer the complaint or respond in any way.

2. The September 7, 2004, complaint of Jason Lundy.

In his complaint, Jason Lundy, a member of the firm of Shiff Hardin, LLP, stated that his firm represented the defendant Sears Roebuck and Co., in an action commenced by the respondent on behalf of Thomas Powell in the Supreme Court, Nassau County. By order dated April 2, 2004, a sanction was imposed against the respondent by Justice F. Dana Winslow for failure to comply with court-ordered discovery, and he was directed to pay Shiff Hardin, LLP, the sum of $750. Mr. Lundy complained that the check issued by the respondent in payment of the sanction was dishonored due to insufficient funds.

By letter dated September 15, 2004, the Grievance Committee requested that the respondent answer the complaint within 15 days of receipt of the letter. The respondent failed to submit an answer or request an extension of time to do so.

By letter dated October 25, 2004, sent by certified mail, the Grievance Committee requested that the respondent submit an answer to the complaint within 10 days of receipt of the letter. The letter was returned by the post office as unclaimed.

By letter dated January 18, 2005, personally served upon the respondent on January 20, 2005, the Grievance Committee again requested that the respondent submit a written answer to the complaint within 15 days of receipt of the letter. The respondent did not answer the complaint.

3. The October 4, 2004, Sua Sponte complaint.

The sua sponte complaint, referred by the Lawyers' Fund for Client Protection (hereinafter the Lawyers' Fund), alleged that the respondent's check number 226, drawn on his Chase Bank account in the name of "IOLA-Brian M. Rosicky Attorney At Law," dated June 11, 2004, in the sum of $960, and payable to Denise Rosicky, was dishonored due to insufficient funds.

By letter dated October 7, 2004, the respondent was asked to submit a written answer to the complaint within 20 days of receipt of the letter. In addition, he was asked to submit certain banking records related to his attorney IOLA account. The respondent failed to submit a written answer to the complaint or the banking records requested.

By letter dated November 15, 2004, sent by certified mail, the Grievance Committee requested that the respondent submit a written answer to the complaint, as well as his banking records, within 10 days of receipt of the letter. The letter was returned by the post office as unclaimed.

By letter dated December 27, 2004, sent by certified mail, the Grievance Committee requested that the respondent submit a written answer to the complaint, as well as bank records relating to his attorney IOLA account, within 20 days of receipt of the letter. Again, the letter was returned by the post office as unclaimed.

By letter dated January 18, 2005, personally served upon the respondent on January 20, 2005, the Grievance Committee requested that the respondent submit a written answer to the complaint, as well as banking records related to his attorney IOLA account, within 20 days of receipt of the letter. The respondent failed to submit an answer.

4. The October 27, 2004, complaint from OCA.

A complaint against the respondent, referred by the Office of Court Administration (hereinafter OCA), alleged that he issued a check dated February 5, 2003, drawn on his Citibank account in the name of "Brian M. Rosicky," payable to OCA in the sum of $300, for his attorney registration fee. The check was dishonored due to insufficient funds.

By letter dated January 13, 2005, sent by certified mail, the Grievance Committee requested that the respondent submit a written answer to the complaint within 15 days of receipt of the letter. The respondent failed to answer the complaint.

By letter dated January 18, 2005, personally served upon the respondent on January 20, 2005, the Grievance Committee again requested that the respondent answer the complaint within 15 days of receipt of the letter. The respondent failed to submit an answer.

5. The August 8, 2005, complaint of John Dionisio.

The Grievance Committee received a complaint filed by John Dionisio, who had been represented by the respondent in a small claims action that settled. The complainant received his share of the proceeds, but alleged that the respondent knew that there was a $2,100 medical lien against the settlement and failed to satisfy the lien.

By letter dated August 26, 2005, the Grievance Committee requested that the respondent submit a written answer to the complaint within 15 days of receipt of the letter. The respondent failed to answer the complaint.

6. The September 7, 2005, complaint of Vincent Oliva.

In a complaint, Vincent Oliva alleged that he retained the respondent on or about December 5, 2002, to represent him in an action against Home Depot U.S.A., Inc., and paid the respondent $500 in legal fees. Mr. Oliva complained that the respondent neglected the legal matter by failing to comply with the court-ordered discovery.

By letter dated September 12, 2005, the Grievance Committee requested that the respondent submit a written answer to the complaint within 15 days of receipt of the letter. The respondent failed to answer.

By letter dated October 19, 2005, sent by certified mail, the Grievance Committee requested that the respondent submit a written answer to the complaint within 10 days of receipt of the letter, and the return receipt indicated that the letter was delivered on October 21, 2005. The respondent failed to submit an answer.

Judicial Subpoenas and Judicial Subpoenas Duces Tecum

Additionally, pursuant to judicial subpoena and judicial subpoena duces tecum both dated March 1, 2005, and personally served on March 10, 2005, the respondent was directed to appear at the office of the Grievance Committee on April 12, 2005, with respect to the LaBarbera, Lundy, Lawyers' Fund, and OCA complaints, and to produce certain documents.

On April 11, 2005, at approximately 2:45 P.M., the respondent telephoned the Grievance Committee's office and left a voice mail message requesting an adjournment and stating that his employment prevented him from appearing on April 12, 2005. When Grievance Counsel returned the call at about 3:00 P.M., the respondent did not answer. Grievance Counsel left a voice mail message stating that consent to the adjournment would not be granted and directing the respondent to appear pursuant to the subpoenas. The respondent failed to appear and produce the documents as directed.

On the afternoon of April 12, 2005, the respondent telephoned the Grievance Committee's office and stated that he did not appear earlier that day due to his employment. The respondent was advised that the matter would be adjourned to April 28, 2005. This was confirmed by letter dated April 12, 2005, personally served upon the respondent on April 14, 2005. On April 28, 2005, the respondent again failed to appear and produce the records as directed.

Pursuant to a further judicial subpoena and judicial subpoena duces tecum dated June 20, 2006, personally served upon the respondent on July 5, 2006, the respondent was directed to appear at the office of the Grievance Committee on August 16, 2006, with respect to LaBarbera, Lundy, Lawyers' Fund, OCA, Dionisio, and Oliva complaints. In addition, he was directed to produce certain documents. The respondent failed to appear at the office of the Grievance Committee on August 16, 2006, and he failed to produce the documents as directed.

Submitted with the Grievance Committee's order to show cause is a proposed petition dated January 2, 2007, setting forth nine charges of misconduct against the respondent.

The respondent's repeated failure to comply with the lawful requests of the Grievance Committee and to comply with the judicial subpoenas and subpoenas duces tecum, establish that his misconduct immediately threatens the public interest and that his immediate suspension is warranted pursuant to the standards set forth in 22 NYCRR 691.4(l)(1)(i).

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), the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him, the respondent is directed to serve a written answer to the petition, and a special referee is appointed to hear and report.

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

ENTER:

James Edward Pelzer

Clerk of the Court