Appellate Division: Second Judicial Department

M56012

K/nl

A. GAIL PRUDENTI, P.J.

HOWARD MILLER

ROBERT W. SCHMIDT

STEPHEN G. CRANE

JOSEPH COVELLO, JJ.

2006-10219 In the Matter of Shelley A. Rivera, admitted as Shelley Ann Rivera, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Shelly A. Rivera, respondent. (Attorney Registration No. 2842599)

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)and (iii), upon a finding that she is guilty of misconduct immediately threatening the public interest in that she has failed to cooperate with the lawful demands of the Grievance Committee, and uncontroverted evidence that she failed to maintain and preserve client funds in her escrow account; 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. By decision and order on motion dated January 24, 2007, on the court's own motion, Robert P. Guido of the Office of Special Counsel to the Presiding Justice for Grievance Matters, was appointed, pursuant to 22 NYCRR 691.10(k), to take custody of and to inventory the respondent's files and to take such action as seems indicated to protect the interests of the respondent 's clients. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on November 12, 1997, under the name Shelley Ann Rivera.

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

ORDERED that the motion is granted to the extent of suspending the respondent pursuant to 22 NYCRR 691.4(l)(1)(iii), effective immediately; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(iii), the respondent, Shelley A. Rivera, admitted as Shelley Ann Rivera, 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, Shelley A. Rivera, admitted as Shelley Ann Rivera, 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 Shelley A. Rivera, admitted as Shelley Ann Rivera, based on the petition dated March 28, 2007; and it is further,

ORDERED that Gary L. Casella, Chief Counsel, 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 her 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 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 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, Shelley A. Rivera, admitted as Shelley Ann Rivera, 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 uncontroverted evidence of her professional misconduct.

In or about October, 2006, the Grievance Committee received a complaint from the respondent's aunt, Annette Rivera, alleging that respondent, inter alia, converted the sum of $1 million of the aunt's funds that had been deposited by the respondent in accounts, including her attorney trust account at Citibank in White Plains. The respondent failed to disburse the funds as required for the aunt's purchase of certain real estate, and the aunt learned that on October 16, 2006, the respondent disappeared.

Grievance Counsel advises that the respondent's aunt also filed a complaint with the Westchester County District Attorney's office, and commenced an action in the Supreme Court, Westchester County, for conversion based upon the respondent's personal use of clients' funds in her attorney trust account. In the Westchester County action, the respondent's aunt obtained injunctive relief including a temporary retraining order freezing respondent' escrow account and imposing a constructive trust.

The respondent's attorney advises that the respondent was arrested and incarcerated in Las Vegas on or about November 22, 2006, and extradited to Westchester County in December 2006, where she continues to be incarcerated in the Westchester County Penitentiary. The criminal proceeding against the respondent is being prosecuted by the Westchester County District Attorney.

The Grievance Committee further reports that two additional complaints involving bounced checks from the respondent's escrow account are currently pending against her. One was opened sua sponte upon the Grievance Committee's receipt of notification that the respondent bounced at least three checks and accumulated at least $90 in fees charged to her attorney trust account for a total balance of negative $ 493.08.

Another complaint was filed by Counsel to the Bronx County Clerk, who advised that the Clerk's Office received two checks drawn on the respondent's attorney trust account dated October 10, 2006, in the amounts of $45 and $95, relating to a case involving Household Finance Realty Corp. It appears that these two checks are the subject of the sua sponte complaint discussed above.

The Grievance Committee mailed a copy of all three complaints to the respondent at her last known business addresses on file with the Office of Court Administration and also to her last known residence. The respondent did not submit any answer or response to the complaints.

By letter dated December 27, 2006, the respondent's attorney, contacted the Grievance Committee, and on that same day, it provided him with copies of all three pending complaints.

By letter dated January 26, 2007, the Grievance Committee reminded the respondent's attorney that written answers were not yet submitted in response to the complaints, and that the Grievance Committee would likely seek and interim suspension and authorization to commence a disciplinary proceeding against respondent.

By letter dated March 6, 2007, the respondent was directed to account for the funds she received relating to all three grievances and to provide her bank records related to all three matters.

In the interim, the Grievance Committee subpoenaed and received copies of bank statements relating to the respondent's attorney trust account from Citibank, which reflect over 70 instances in which the respondent made improper ATM withdrawals, totaling approximately $14,547.32 and numerous transfers of funds to the respondent's son.

The respondent was directed by the Grievance Committee to explain the purposes of the ATM withdrawals and transfers of funds to herself and her son and to identify the corresponding deposits for these disbursements. She failed to provide the information requested.

Additionally, the respondent had another escrow account with a negative average ledger balance of -$347.62, for the statement period from Nov. 1, 2006 to Nov. 30, 2006.

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

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

ENTER:

James Edward Pelzer

Clerk of the Court