Appellate Division: Second Judicial Department

M62211

E/nl

A. GAIL PRUDENTI, P.J.

HOWARD MILLER

ROBERT W. SCHMIDT

STEPHEN G. CRANE

EDWARD D. CARNI, JJ.

2007-07000 In the Matter of John P. Oliver, admitted as John Patrick Oliver, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; John P. Oliver, respondent. (Attorney Registration No. 1100015)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District for an order suspending the respondent from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(iii), on the ground that he is guilty of professional misconduct immediately threatening the public interest based upon uncontroverted evidence which establishes his failure to maintain client funds in his escrow account, conversion of client funds, and engaging in conduct involving dishonesty, fraud, and deceit. The Respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 25, 1976, under the name John Patrick Oliver.

Upon the papers submitted in support of the motion and no papers having been submitted in opposition or in relation thereto, it is

ORDERED that the motion is granted and pursuant to 22 NYCRR 691.4(l)(1)(iii), the respondent, John P. Oliver, admitted as John Patrick Oliver, 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, John P. Oliver, admitted as John Patrick Oliver, 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, John P. Oliver, admitted as John Patrick Oliver, 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 on the court's own motion, the Grievance Committee for the Tenth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this court against John P. Oliver, admitted as John Patrick Oliver, based on the affirmation in support of the motion to suspend the respondent dated July 11, 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 the Grievance Committee shall serve upon the respondent and the Special Referee and file with this court a petition within 30 days after receipt of a copy of this decision and order on motion; and it is further,

ORDERED that within 20 days after service upon him of a copy of the petition, the respondent John P. Oliver, admitted as John Patrick Oliver, 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 Stanley Harwood, a retired Associate Justice of the Appellate Division, Second Judicial Department, c/o Jaspan Schlesinger Hoffman, 300 Garden City Plaza, Garden City, N.Y. 11530, 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, John P. Oliver, admitted as John Patrick Oliver, 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 professional misconduct.

On or about March 2, 2007, the Grievance Committee received a complaint from Wade S. Durr, who along with his wife retained the respondent in December 2006 to represent them in the sale of their home in Stony Brook. The respondent had been the Durrs' attorney for 25 years.

Pursuant to the contract of sale, the Durrs were to receive the sum of $207,500 after payment of all expenses. At the closing on February 15, 2007, the respondent received two checks from the purchaser's attorney which totaled $207,500 and were payable to the respondent as attorney. The respondent was to deposit the checks in his escrow account and issue the Durrs a check for $207,500, after clearance in three days.

On February 26, 2007, the respondent gave Mr. Durr a check, drawn on his escrow account, for $207,500. Mr. Durr deposited that check into his bank account. On March 1, 2007, the Durrs' bank advised them that the respondent's check had been returned for insufficient funds.

Subpoenaed documents disclose that the respondent's attorney trust account fell below the amount the respondent was required to preserve from the Durr transaction on four occasions between February 16, 2007 and February 26, 2007. The balance fell to $129,473.62 on February 26, 2007.

The respondent has been arrested and charged in Suffolk County with Grand Larceny in the second degree in connection with the theft of the Durr's money.

On or about June 12, 2007, the Grievance Committee received a complaint from Janet E. Borkowski relating to a domestic relations matter in which the respondent represented her. Pursuant to a stipulation of settlement entered into in December 2006, Ms. Borkowski agreed to purchase her husband's interest in a jointly owned condo for the sum of $35,000. The agreement provided that payment would be made in March 2007.

On March 6, 2007, Ms. Borkowski delivered to the respondent a bank check for $35,000 payable to the respondent as attorney. That check was deposited into the respondent's trust account on March 12, 2007. In or about late May 2007, Ms. Borkowski learned that the respondent never made the $35,000 payment on her behalf.

Based on the foregoing, the Grievance Committee submits that the respondent has engaged in uncontroverted acts of professional misconduct which threaten the public interest and warrant his interim suspension.

Although personally served with the Grievance Committee's order to show cause on July 27, 2007, the respondent has failed to submit any reply. Accordingly, the evidence remains uncontroverted.

Accordingly, the Grievance Committee's motion is granted without opposition, the respondent is immediately suspended, and the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent.

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

ENTER:

James Edward Pelzer

Clerk of the Court