Appellate Division: Second Judicial Department

M62194

K/nl

A. GAIL PRUDENTI, P.J.

HOWARD MILLER

ROBERT W. SCHMIDT

STEPHEN G. CRANE

REINALDO E. RIVERA, JJ.

2007-07371 In the Matter of David B. Rosen, an attorney and counselor-at-law. Grievance Committee for the Second and Eleventh Judicial Districts, petitioner; David B. Rosen, respondent. (Attorney Registration No. 2163855)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Second and Eleventh Judicial Districts for an order: 1) suspending the respondent from the practice of law pending consideration of charges of professional misconduct against him pursuant to 22 NYCRR 691.4(l)(1)(i), upon a finding that he is guilty of professional misconduct immediately threatening the public interest in that he has failed to submit written answers to complaints of professional misconduct filed against him and has failed to comply with the lawful demands of the Grievance Committee in connection with its investigation; 2) authorizing it to institute and prosecute a disciplinary proceeding based upon the petition dated August 9, 2007; 3) directing the respondent to submit an answer to the petition; and 4) referring the issues raised 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 January 13, 1988.

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), the respondent, David B. Rosen, 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, David B. Rosen, 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 Second and Eleventh Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this court against David B. Rosen, based on the petition dated August 9, 2007; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel to the Grievance Committee for the Second and Eleventh Judicial Districts, Renaissance Plaza, 335 Adams Street, Suite 2400, Brooklyn, New York 11201-3745, 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 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 Jerome M. Becker, a former Judge of the Criminal and Family Courts, c/o Douglas Becker, Esq., Joseph P. Day Co., 9 East 40th Street, 8th floor, New York, N.Y.10016, 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, David B. Rosen, 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.

I. Complaint of the Honorable Miriam R. Best

On July 30, 2007, the Grievance Committee received a complaint from the Honorable Miriam R. Best of the Criminal Court of the City of New York alleging that the respondent failed to appear in her part on behalf of a defendant who advised that the respondent had moved to California. The respondent had not received permission to withdraw, in apparent violation of DR 2-110(a)(2).

The Grievance Committee contacted the respondent's law office and confirmed that he had abandoned his practice and was residing in California with his new wife.

By letter dated February 14, 2007, sent to the respondent's California residence, the Grievance Committee directed the respondent to answer the complaint of Judge Best within 10 days. Although that letter was not returned as undeliverable, the respondent failed to answer or to contact the Grievance Committee in any way.

On April 3, 2007, the Grievance Committee sent the respondent a letter, via first class and certified mail, again directing him to provide a written answer within 10 days and warning that continued failure to cooperate with the Grievance Committee's investigation might result in a motion for his immediate suspension. Although the letter sent via certified mail, with receipt card, was returned unclaimed, the letter sent via first class mail was not. No further correspondence was received from the respondent.

II. Complaint of Simmona Williams

On February 21, 2007, the Grievance Committee received a complaint from Simmona Williams alleging, inter alia, that the respondent failed to return the complainant's business records to her despite repeated requests. On March 16, 2007, the Grievance Committee sent a letter to the respondent's California address, via first class mail, directing him to provide a written answer within 10 days. Although the letter was not returned as undeliverable by the United States Postal Service, the respondent failed to answer.

On April 3, 2007, the Grievance Committee sent the respondent a letter, via certified and first class mail, to his California address again directing him to answer within 10 days and warning him that his continued failure to cooperate could result in a motion for his immediate suspension. Although the letter sent via certified mail, with receipt card, was returned unclaimed, the first class letter was not. The respondent nevertheless failed to reply.

III. Complaint of Carmen Sennett

On February 21, 2007, the Grievance Committee received a complaint from Carmen Sennett alleging, inter alia, that the respondent was paid a $2,000 cash retainer but left the state without working on her case. By letter dated March 14, 2007, sent via first class mail to the respondent's California address, the Grievance Committee directed the respondent to submit an answer within 10 days. Although that letter was not returned as undeliverable by the United States Postal Service, the respondent failed to reply or to contact the Grievance Committee.

By letter dated April 3, 2007, sent to the California address via certified and first class mail, the Grievance Committee directed the respondent to answer within 10 days and warned that continued failure to cooperate could result in a motion for his immediate suspension. Although the letter sent via certified mail, with receipt card, was returned unclaimed, the first class letter was not. The respondent nevertheless failed to reply.

IV. Complaint of Gloria Hypolite

On March 28, 2007, the Grievance Committee received a complaint from Gloria Hypolite alleging, inter alia, that the respondent was paid the sum of $1,500, did little work on her case, and moved to California without providing her a refund. By letter sent via first class mail, dated April 11, 2007, the Grievance Committee directed the respondent to provide an answer within 10 days. Although that letter was not returned as undeliverable by the United States Postal Service, the respondent failed to reply or to contact the Grievance Committee.

On July 23, 2007, the Grievance Committee sent the respondent a letter, via first class and certified mail, directing him to answer within 10 days and warning that his continued failure to cooperate with the investigation could result in an application for his immediate suspension. Although neither letter was returned to the Grievance Committee, the respondent failed to reply.

V. Complaint of Leslie E. Kirkland

On June 4, 2007, the Grievance Committee received a complaint from Leslie E. Kirkland alleging, inter alia, that she retained the respondent to pursue a medical malpractice case on her behalf in May 2006 and has been unable to contact him to determine the status. By first class letter dated June 13, 2007, the Grievance Committee directed the respondent to submit an answer within 10 days. Although that letter was not returned as undeliverable by the United States Postal Service, the respondent failed to reply or to contact the Grievance Committee.

On July 23, 2007, the Grievance Committee sent the respondent a letter, via fist class and certified mail, directing him to answer within 10 days and warning that his continued failure to cooperate could result in a motion for his immediate suspension. Although neither letter was returned to the Grievance Committee, the respondent failed to reply.

VI. Complaint of Jean Benoit Chapon

On January 12, 2007, the Grievance Committee received a complaint from Jean Benoit Chapon alleging, inter alia, that he retained the respondent to pursue a motor vehicle accident case on his behalf and gave the respondent title to the automobile. The respondent did nothing on the case. Complainant has been unable to contact him to determine the status of the case or to obtain title to his car.

By letter dated July 19, 2007 sent via first class mail, the Grievance Committee directed the respondent to submit an answer within 10 days. Although that letter was not returned as undeliverable by the United States Postal Service, the respondent failed to reply or to contact the Grievance Committee in any manner.

To date, the respondent has failed to contact the Grievance Committee, to submit an answer, or to otherwise cooperate with respect to the complaints filed by Judge Best, Ms. Williams, Ms. Sennett, Ms. Hypolite, Ms. Kirkland, or Mr. Chapon. A petition dated August 9, 2007, and containing a single charge of professional misconduct based on the aforesaid repeated pattern and practice of failing to cooperate with the Grievance Committee's investigations, is annexed to the order to show cause.

Although personally served with the motion papers by an authorized deputy sheriff in California on August 27, 2007, the respondent has not asserted any reply.

Based on the uncontested allegations set forth by the Grievance Committee, the motion is granted, the respondent is suspended pursuant to 22 NYCRR 691.4(l)(1)(i), on the ground that he constitutes an immediate threat to the public based on his persistent failure to cooperate, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent, and this matter is referred to a Special Referee to hear and report.

PRUDENTI, P.J., MILLER, SCHMIDT, CRANE and RIVERA, JJ.

ENTER:

James Edward Pelzer

Clerk of the Court