Appellate Division: Second Judicial Department

M57334

K/nl

A. GAIL PRUDENTI, P.J.

HOWARD MILLER

ROBERT W. SCHMIDT

WILLIAM F. MASTRO

GABRIEL M. KRAUSMAN, JJ.

2007-02955 In the Matter of Robert Tavon, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Robert Tavon, respondent. (Attorney Registration No. 3981453)

DECISION & ORDER ON MOTION

Motions by the Grievance Committee for the Ninth Judicial District for orders: 1) suspending the respondent from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), (ii) and (iii), on the grounds that he constitutes an immediate threat to the public interest based upon his failure to cooperate with the Grievance Committee's lawful demands in connection with an investigation into his conduct as an attorney, and/or a substantial admission under oath that he has committed an act or acts of professional misconduct, and/or other uncontroverted evidence of professional misconduct; 2) authorizing the institution of a disciplinary proceeding against the respondent based upon a petition dated March 22, 2007, and a supplemental petition dated May 4, 2007, which were served upon the respondent along with the respective orders to show cause; 3) directing the respondent to answer the petition and supplemental petition; and 4) referring the issues raised by the petition and supplemental petition and any answers 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 First Judicial Department on June 26, 2001.

The Grievance Committee's first motion emanates from its efforts to investigate four different complaints of professional misconduct and the impediments encountered by the respondent's failure to timely or appropriately comply. Although granted a two-week extension of time in which to answer that motion, the respondent failed to assert a timely response. His papers dated May 31, 2007, which were not received by the court until June 5, 2007, were not properly served and, in any event, are untimely.

Upon the papers filed in support of the motions and no papers having been properly submitted in opposition thereto, it is

ORDERED that the motions are granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i), (ii) and (iii), the respondent, Robert Tavon, 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, Robert Tavon, 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 Robert Tavon, based on the petition dated March 22, 2007, and the supplemental petition dated May 4, 2007; and it is further,

ORDERED that Gary E. Casella, Chief Counsel to the 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 him of a copy of this decision and order on motion, the respondent shall serve answers upon the petitioner and the Special Referee, and shall file the original answers with this court; and it is further,

ORDERED that the issues raised by the petition and supplemental petition and any answers thereto are referred to the Honorable Fred L. Shapiro, a former County Court Judge, Westchester County, 140 Grand Street, Suite 401, White Plains, N.Y. 10601, 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, Robert Tavon, 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).

I. Complaint of Cheng Hua Yin

In June 2005, the Grievance Committee received a complaint from Mr. Yin, the plaintiff in a matter pending in the New York City Civil Court. The respondent allegedly failed to appear in court on one or more return dates; advised complainant's general counsel that the motion to admit late service which the respondent had been retained to file, was successful when, in fact, it had been denied due to the respondent's failure to appear; and failed to return any of the fees paid to him for services he had failed to properly perform.

On June 30,2005, the Grievance Committee forwarded the Yin complaint to the respondent and requested an answer within 10 days. On July 11, 2005, the respondent requested and received an adjournment of his time to answer to August 1, 2005. The respondent failed to comply notwithstanding the Grievance Committee's warning that noncompliance would result in prompt appropriate action. This prompted a letter from the Grievance Committee via overnight delivery on August 3, 2005, advising the respondent that no further adjournments had been granted, that he was in default, and that the matter was being calendared for appropriate action. An answer was finally received on August 5, 2005. The respondent advised that another attorney, Dennis Lan, Esq., had offered him the opportunity to take over the Yin case under a deeply discounted fee structure. The respondent agreed in the hopes of building a referral relationship with Lan that might lead to more work in the future.

The respondent admitted that he never had any direct communications with Mr. Yin, that it was only after being paid $400 by Mr. Lan to do an ex parte motion that a consent to substitute attorney form was signed, that he erroneously believed a motion to admit late service could be done on submission, that his failure to appear in court resulted in the denial of said motion, and that a $5,000 settlement offer lapsed before being conveyed to Mr. Yin.

II. Complaint of Ben Juan Wu

Ms. Wu informed the Grievance Committee that she had retained the respondent on or about October 8, 2004, to sue her ex-husband for refusing to permit her visitation with their daughter. Per Ms. Wu, the respondent inexplicably failed to file any action for more than four months, was difficult to reach during that period, and intentionally refused to receive or return her calls. Ms. Wu discharged the respondent after their first court appearance on April 26, 2005, and requested the return of documents she had given him.

After receiving a final extension of time to submit an answer to the Wu complaint, the respondent faxed to the Grievance Committee's offices on Sunday, September 4, 2005, a faded copy of the complaint on which he scribbled illegible handwritten responses to various paragraphs. On September 6, 2005, Grievance Counsel faxed a letter reminding the respondent that such illegible handwritten submissions were unacceptable and directed him to immediately submit a legible response. Later that day, the respondent delivered a typewritten response which was unsigned, totally failed to address the four-month delay, claimed a misunderstanding regarding the papers provided, and asserted that Lan was at the root of both complaints on a vendetta against him.

The respondent testified under oath on August 9, 2006, with respect to both complaints. The respondent reluctantly conceded that he failed to retrieve the certified letters sent to his designated address because he recognized the zip code as that of the Grievance Committee. He nevertheless claimed to have diligently cooperated with the Grievance Committee. The respondent related the hardship he had undergone to prepare his response to the Wu matter and complained about being "taken to task for missing a deadline by four days, which was not a drop-dead deadline," especially when "nobody got injured."

The respondent confirmed under oath that he had never even spoken with Mr. Yin and that all funds received for his work in that matter had come directly from Dennis Lan. The respondent admittedly made no effort to verify the signature of Mr. Yin on the consent to change attorney form or to otherwise corroborate that he had the client's permission to enter the case. The respondent took no responsibility for his own conduct, choosing instead to blame Mr. Lan as an officer of the court.

With respect to the motion to admit late service on behalf of Mr. Yin, the respondent simply presumed that his research was dispositive and that the motion had been granted. He offered no explanation for his failure to appear in court on the return day of the motion.

The respondent admittedly failed to conduct any discovery in the Yin matter and filed a certificate of readiness as "a strategy to force the issue." He admitted that he failed to confirm an adjourned trial date. As a result, the matter was dismissed on default as a result of his failure to appear for trial on March 1, 2005.

During his testimony, the respondent claimed exhaustion and requested an adjournment to another day. Grievance Counsel advised that unless he could document that he was medically incapable of testifying, the examination would continue to its normal conclusion without further adjournment. When the respondent threatened to leave, he was advised that such action would have immediate consequences, including possible presentation of these maters to the Grievance Committee for appropriate action. The respondent grew increasingly agitated, refused to answer questions, and ultimately left the Grievance Committee's offices without adjournment.

As a result of the respondent's unilateral termination of the August 9, 2006, examination, the Grievance Committee obtained subpoenas compelling him to appear for a continued examination under oath on September 20, 2006, along with relevant records remaining in his possession. When served with the subpoenas, the respondent was reminded that the examination might take all day and that he had the right to counsel.

In reply, the respondent noted that he had resided in and changed his office address to the Bronx for some two years. He planned to advise the Office of Court Administration (hereinafter OCA) of the change and inquired as to the jurisdiction of the Grievance Committee. That testimony contradicts the information provided by the respondent on his background questionnaires as well as his August 9, 2006, testimony under oath. Significantly, OCA records reflect that the respondent's office address consistently has been located in Westchester County.

Notwithstanding the Grievance Committee's warning that the respondent's failure to appear on the return date of the subpoenas could constitute contempt as well as professional misconduct and would be treated accordingly by the Grievance Committee, he failed to appear as directed. Approximately 15 minutes after the scheduled start, the respondent telephoned the Grievance Committee's offices to report that he would be approximately one-half hour late. When the respondent failed to appear by 11:30 A.M., a record of that morning's events was made and the court reporter was released. The respondent arrived approximately ten minutes after the court reporter was released and explained that he had locked his keys in the car. Although the respondent agreed to appear the following morning, he subsequently telephoned and reneged. The Grievance Committee reluctantly agreed to adjourn the respondent's appearance to September 26, 2006.

Based on documents in the respondent's own file, Grievance Counsel concluded that he should have known that the Yin trial was adjourned to March 1, 2005. Notwithstanding his claim that his services had been terminated prior to that date, the respondent testified under oath that he had never communicated with his client. The respondent totally relied upon the representations of Mr. Lan, who spoke Chinese, with regard to the case. He had no firsthand knowledge that Mr. Yin actually existed at any time during the course of his representation. The respondent admitted that this was not the only matter in which he had accepted an assignment of representation from Mr. Lan without having met the client. Throughout his examination under oath, the respondent blamed Mr. Lan for the ethical breaches and took no responsibility for his own conduct.

Unlike the Yin matter, the respondent had actually met with complainant Wu and agreed to represent her in a custody and visitation matter. He admittedly failed to provide Ms. Wu with a specific retainer and statement of client's rights and responsibilities. He had no explanation other than Mr. Lan's overseeing the matter and failing to apprise him of his duties.

The respondent's sole explanation for his delay in handling the Wu matter was Mr. Lan's purported inaccessibility and the difficulty in serving Ms. Wu's ex-husband.

The respondent indicated that he was being treated for symptoms of depression and that his medications included Paxil and Risperdal. Other than missing a hearing date, the respondent did not believe that the conduct under review was attributable to a failure to take his medication.

III. Complaint of Lawrence Dworkin

In September 2006, the Grievance Committee received a complaint against the respondent from Lawrence Dworkin, the owner of Dworkin Construction, emanating from an August 15, 2006, decision by the Honorable George R. Mayer in Bronxville Village Justice Court noting the respondent's default in an action for legal fees. The Grievance Committee forwarded the complaint to the respondent at the Bronx address which he had asked to be used in forwarding correspondence to him.

On July 10, 2006, the respondent had filed a motion to vacate the default judgment. That motion contained an illegible signature. On July 19, 2006, the respondent filed a second motion for that relief which was not signed. Per Justice Mayer, the respondent attempted to mislead the court by inferring that the second motion is merely a legible copy of the first. Justice Mayer concluded that the respondent failed to show a meritorious defense to the complainant's allegations in the small claims matter and denied the motion.

In his answer to the complaint, the respondent asserted that he remained unclear as to the exact nature of the complaint. Per the respondent, complainant claims to have paid him $1,500 to perform all tasks necessary to perfect a complete appeal with a brief and compilation of the record in accordance with the technical appellate court rules when, in fact, he only agreed to do the actual brief.

Complainant advised that he had given the respondent three matters to handle between October 15, 2002, and June 17, 2003. In the last two matters, the respondent failed to complete his responsibilities in a timely manner even though he had been paid up front. After complainant paid the respondent $1,325 between June 17, 2003, and April 15, 2004, in the third matter, the respondent ignored the case for so long that the defendant filed for bankruptcy.

Complainant directed the respondent to file a motion for summary judgment with respect to one of the other matters only to have the court decide in favor of the other party. Complainant directed the respondent to file an appeal. Notwithstanding complainant's continually urging the respondent on, the respondent missed filing deadlines and had the brief rejected by the clerk. Complainant was irritated by this turn of events and filed a small claims action in Bronxville Justice Court. The respondent failed to appear in that action on the adjourned date. After an inquest, Justice Mayer awarded judgment for $1,971 which was filed in Westchester and Bronx Counties. That judgment remained unpaid and undisturbed until the respondent moved to vacate his default, resulting in the August 15, 2006, decision.

On October 30, 2006, the Grievance Committee requested that the respondent appear for an examination under oath with respect to the Dworkin complaint. After a date was set, the respondent requested an adjournment. He telephoned the Grievance Committee's offices on the morning of the adjourned date to report that his car had been towed and impounded and that his driving privileges were suspended. Although the respondent was advised to travel by alternate means because the examination would not be adjourned, the respondent insisted that he needed to go to the Department of Motor Vehicles to correct these problems. A record was made of the respondent's failure to appear.

Department of Motor Vehicles records reveal that the respondent received numerous summonses over the past several years, including two citations for driving with a revoked or suspended license. On November 20, 2006, the respondent faxed a letter to the Grievance Committee stating, inter alia: "I don't know which is more serious my criminal traffic violations for operating with a suspended license (due to a rash of tickets that went unanswered) or the investigation of your committee of me." The respondent admitted that he was struggling financially and that he would contact the Grievance Committee within a few days to make himself available and/or advise what he had learned about the lowest cost method of getting to the Grievance Committee's offices by taxi.

The respondent's appearance was rescheduled for December 13, 2006, and the respondent was personally served with subpoenas so ordered by the court. The respondent was also advised that no adjournments or further obstructionist conduct would be tolerated.

On December 6, 2006, the respondent wrote to the Grievance Committee for the Ninth Judicial District and the Departmental Disciplinary Committee of the First Judicial Department requesting transfer of these matters to the First Department. The respondent based that request on his claim that he had used a Bronx address since March 2005, and that travel to the First Department would entail a $4 subway ride as opposed to a $50 round trip cab ride to the offices of the Grievance Committee for the Ninth Judicial District.

Both jurisdictions conferred, agreed that there was no valid basis for the transfer, and advised the respondent of his obligation to appear at the offices of the Grievance Committee for the Ninth Judicial District on December 13, 2006, pursuant to subpoena. The respondent nevertheless failed to appear on December 13, 2006. There were no further communications with the Grievance Committee until December 14, 2006, when he faxed a barely legible note suggesting that he had finally arranged for transportation to the Grievance Committee's offices. Based thereon, the Grievance Committee arranged a final appearance date of January 3, 2007.

The respondent appeared for that examination in an unshaven and disheveled state. He accused staff counsel of conspiring to "get him" based on a conversation which he allegedly heard at the time of his previous appearance. For this reason, the respondent had attempted to change venue to the First Department. He argued that the Grievance Committee lacked jurisdiction over his conduct by virtue of his several attempts to change his address with OCA via e-mail.

The respondent acknowledged his awareness that his driving privileges had been revoked in November 2006, due to his having driven with a suspended license. He was unable to recall whether he had ever driven to his appearances at the Grievance Committee's office while his license was suspended.

Based upon the respondent's testimony, the Grievance Committee submits that he made multiple misrepresentations to it regarding the location of his law office and his efforts to advise OCA of same. Moreover, the respondent's submission of an altered second default application in the Bronxville small claims matter, his failure to cooperate with its lawful demands with respect to the Dworkin investigation, and his failure to adequately prepare a record on appeal and his subsequent neglect in failing to timely file an appellate brief in another legal matter, provide a predicate for his interim suspension.

IV. Complaint of Susan Palmiro

Per the Palmiro complaint, the respondent approached her and her husband in August 2004, while they were in court to file a complaint against a Dr. Brad Jacobs. After conversing with them, the respondent suggested that they had a malpractice case, that such cases were difficult to prosecute without counsel, and offered to assist them for a discounted rate. The respondent then proceeded to file their action without the required certificate of merit. He consulted another attorney, who soon wanted nothing further to do with the respondent or this matter, and missed several deadlines without answering complainant's numerous calls for weeks. The respondent finally contacted complainant, explained that he had been vacationing in Canada, and that he had other deadlines which were more pressing than hers. After granting numerous adjournments, the judge in that action issued a final deadline of April 24, 2006, to file the certificate of merit.

As a result of the respondent's failure to act, the case was disposed of and the respondent's application to restore it was denied. Complainant heard nothing further from respondent. In the two years the respondent had her case, complainant expended a $1,500 fee for a plastic surgeon who was supposed to offer a report supporting her theory of the case. In addition, she claimed to have paid the respondent an additional $3,000, some of which was in cash and could not be undocumented.

The respondent blamed the complainant and her husband for putting the burden on him to find a doctor to support the conclusion that the defendant had deviated from the standard duty of care and for ultimately ceasing all payments to him while refusing to execute a retainer or letter of engagement for filing with OCA.

The matter was ultimately dismissed and the respondent's motion to reargue was denied.

At the time its first order to show cause was submitted, the Grievance Committee was in the process of investigating three additional complaints of professional misconduct against the the respondent. The full Committee voted to refer all three additional matters to the court. Accordingly, the Grievance Committee made a separate second motion for the specified additional relief as well as in further support of its already pending order to show cause.

I. Complaint of Adam Torio

Complainant was involved in a holdover tenancy proceeding seeking to establish that he had been permitted to live in the premises illegally and was under no obligation to pay rent for an illegal tenancy. At a November 30, 2006, court appearance, a Judge confirmed complainant's assessment of his position in large part and recommended that he obtain counsel to assert all available legal defenses. The respondent overheard the advice, approached complainant, and was retained. He initially demanded $350 for a court appearance but, accepted $250 in cash as full payment and promised to charge the same for the upcoming trial date. However, the respondent telephoned complainant the night before trial and threatened not to appear unless he was paid the full $350. Upon arriving in court, the respondent dealt with the landlord's attorney who kept demanding additional payments to settle the matter. Notwithstanding pressure from the respondent, complainant refused to agree to any disposition which would require him to pay additional funds. The respondent returned with a stipulation, which he had executed on complainant 's behalf. When complainant finally read the document, he was shocked to discover that it obligated him to pay the landlord $12,000 in back rent and vacate the premises by March 30, 2007, to avoid arrest. Complainant made multiple calls to the respondent's office before learning that the phone had been disconnected. Complainant's efforts to vacate the stipulation were denied.

II. Sua Sponte Complaint (File 25389)

By order dated January 25, 2007, the respondent was sanctioned $1,000 by Justice Carro of the Supreme Court, New York County, for failing to appear on four court dates, failing to timely advise the court of his absences, and failing to demonstrate good cause for those absences. The case was thereafter sent for trial and the respondent continued to appear late or not at all. On February 2, 2007, the client discharged the respondent for his failures to appear as well as the client's dissatisfaction with the respondent's representation. The trial judge declared a mistrial, discharged the jury, and directed the respondent to show cause why he should not be held in contempt or otherwise sanctioned. The respondent informed the court that he suffers from bipolar disorder for which he takes three medications, one of which causes him to suffer insomnia for several days and leaves him unable to function. He provided no medical documentation of his claim.

By order dated February 7, 2007, Justice Straus of the Supreme Court, New York County, referred the matter to the First Department Departmental Disciplinary Committee. No financial sanction was imposed inasmuch as the respondent had previously been sanctioned and claimed a lack of funds.

III. Sua Sponte Complaint (File 25436)

A sua sponte complaint was based on the respondent's failure to timely re-register with OCA within 30 days of his birthday, as required by Judiciary Law § 468-a and 22 NYCRR § 118.1.

The respondent failed to timely respond to any of the three pending matters notwithstanding numerous letters sent to him by the Grievance Committee via first class and certified mail. On March 15, 2007, the respondent wrote to the Grievance Committee advising that he had just gotten out of the hospital, did not yet have the stamina to attend to all of his obligations, and needed an extension. The respondent failed to comply with the Grievance Committee's request for information regarding his purported hospitalization.

On April 18, 2007, the Grievance Committee received two brief handwritten notes from the respondent regarding the Torio complaint and the first sua sponte complaint. The respondent claimed that complainant Torio had signed the stipulation notwithstanding his blatant lie that he had not done so. The respondent claimed to suffer from a medical condition whose symptoms include sleep disorder and hypomania. When his symptoms became so severe near the close of trial, the respondent checked himself into Mt. Sinai Hospital. The respondent refused to set forth the particulars "as they are private and protected by the privacy act." The Grievance Committee notes that during numerous previous examinations under oath, the respondent denied ever being incapacitated from the practice of law by virtue of mental illness or medical issues.

In addition, the respondent replied in the negative with regard to a question on the Grievance Committee's background questionnaire regarding whether he was ever directed to pay sanctions or costs. The respondent neither answered the sua sponte complaint regarding his failure to re-register as an attorney nor re-registered with OCA.

The supplemental petition contains eight additional charges of professional misconduct based on the foregoing allegations.

Based on the foregoing, we find that the respondent constitutes an immediate threat to the public interest warranting his immediate suspension pursuant to 22 NYCRR 691.4(l)(1)(i), (ii) and (iii). Accordingly, both motions are granted, the respondent is immediately suspended from practice, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent based on the petition and supplemental petition, and the issues raised are referred to a Special Referee to hear and report.

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

ENTER:

James Edward Pelzer

Clerk of the Court