Appellate Division: Second Judicial Department

M65284

E/nl

STEPHEN G. CRANE, J.P.

REINALDO E. RIVERA

ROBERT A. SPOLZINO

PETER B. SKELOS

STEVEN W. FISHER, JJ.

2007-09760 In the Matter of Warren Scott Goodman, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Warren Scott Goodman, respondent. (Attorney Registration No. 2361566)

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 he is guilty of professional misconduct immediately threatening the public interest in that he has failed to cooperate with the lawful demands of the Grievance Committee in connection with its investigation and based upon other uncontroverted evidence of professional misconduct; (2) authorizing it to institute and prosecute a disciplinary proceeding based upon the allegations set forth in a petition dated October 17, 2007; (3) directing the respondent to submit an answer to the petition; and (4) referring the issues raised by the petition and any answer interposed 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 August 16, 1990.

Upon the papers submitted in support of the motion and the papers 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) and (iii), the respondent, Warren Scott Goodman, 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, Warren Scott Goodman, 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, Warren Scott Goodman, 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 Ninth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this court, against Warren Scott Goodman, based on the petition dated October 17, 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 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 interposed 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, Warren Scott Goodman, 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 comply with lawful demands of the Grievance Committee for the Ninth Judicial District and upon other uncontroverted evidence of his professional misconduct.

Complaint of Oleg Levinscy, a/k/a Oleg Levinsky

In January 2006, the Grievance Committee received a complaint from Oleg Levinscy, a/k/a Oleg Levinsky, who had retained the respondent to represent him in a personal injury action to recover damages stemming from an automobile accident which occurred in January 1999. Mr. Levinscy complained that the respondent failed to respond to his inquiries regarding the status of his action. In an answer dated February 15, 2006, to the Levinscy complaint, the respondent advised the Grievance Committee that the 2002 action was "presently active" and that he "hope[d] to have a conference on it soon." Investigation by the Grievance Committee revealed that the respondent had drafted a summons and complaint, which he filed in the Supreme Court, Kings County, under Index Number 2259/02. However, no answer was ever served in the case and no discovery was conducted. The respondent appeared at the Grievance Committee's offices on July 13, 2006. He testified at his appearance that he discovered in March 2006 that the summons and complaint had not been served, that he commenced a second action in July 2006, under Index Number 12183/06, to recover for damages arising from the 1999 automobile accident, and that the second action, in his opinion, would be timely as it would relate back to the first action.

Thereafter, in a letter dated August 10, 2006, the respondent notified Mr. Levinscy about the commencement of the second action. The respondent took no responsibility for the failure to promptly serve the summons and complaint in the 2002 action, revealing only that "[a]pparently, the first action . . . was not served on the defendant."

Although asked by the Grievance Committee to be kept apprised of the status of the action and to be provided with copies of papers filed in the 2006 action, the respondent did so only on compulsion. Only in response to letter inquiries, did the respondent inform the Grievance Committee that the defendant had moved to dismiss the action as time-barred and provided it with a copy of his opposition papers. The respondent subsequently failed to notify the Grievance Committee of the dismissal of the 2006 action. The Grievance Committee obtained on its own efforts a copy of the January 9, 2007, order dismissing the 2006 action as time-barred. Mr. Levinscy learned about the dismissal from the Grievance Committee and not from the respondent. The Grievance Committee also learned through its own efforts that an appeal was filed on behalf of Mr. Levinscy by a different attorney. As a result of the respondent's inexcusable neglect, Mr. Levinscy was severely prejudiced in that he appears to have been deprived of any chance of recovering damages for his injuries from the 1999 automobile accident.

Complaint of Louis Brusati

On March 1, 2006, the Grievance Committee received a complaint from Louis Brusati who alleged, inter alia, that the respondent failed to advise him of the dismissal of his action until May 27, 2004, by which date the time in which to file a notice of appeal had expired. Mr. Brusati sustained physical injuries on or about February 15, 1998 as a result of a surface defect on certain commercial real property. The respondent commenced a personal injury action in the Supreme Court, Westchester County, under Index Number 20129/00, on Mr. Brusati's behalf. By order dated January 26, 2004, the Supreme Court dismissed the action, finding, inter alia, that the surface defect was too trivial to be actionable.

In his answer dated April 25, 2006, to the Brusati complaint, the respondent stated that he "thought [Mr. Brusati] had been contacted about the decision." A good portion of the respondent's answer was devoted to Mr. Brusati's regrettable decision to reject a $15,000 settlement offer. At his July 16, 2006, appearance before the Grievance Committee, the respondent testified that he "thought" his secretary or student intern had contacted Mr. Brusati about the dismissal. He acknowledged that he possessed no written memoranda memorializing such communication, and that Mr. Brusati had "apparently not" received timely notice. As a result of the respondent's inexcusable neglect, Mr. Brusati has been severely prejudiced in that he has been deprived of his potential appellate remedies.

Complaint of Amaury Maldonado

In or about April 2004, the Grievance Committee received a complaint from Mr. Amaury Maldonado, alleging, inter alia, that the respondent failed to pursue a personal injury action on his behalf. Investigation by the Grievance Committee revealed that the respondent had been retained by Mr. Maldonado in August 1997. On Mr. Maldonado's behalf, the respondent, among other things, filed a no-fault application, obtained a copy of Mr. Maldonado's medical records, and obtained a witness statement. In 1999, a settlement offer of $5,000 was communicated to Mr. Maldonado, who ultimately rejected the offer.

Thereafter, the respondent commenced an action on August 10, 2000. The respondent prepared a motion for a default judgment in 2002, but discovered some time much later that the motion, in fact, was never filed. A second motion for a default judgment, filed in 2004, was rejected because it was not for a "sum certain." In response to the Grievance Committee's investigation, the respondent advised the Grievance Committee that he intended to file a (third) motion for default judgment. Based on the foregoing, the Grievance Committee issued a Letter of Admonition, which was personally served on the respondent on February 17, 2005. The respondent was reminded of his obligation to diligently purse all matters entrusted to him.

By letter dated August 11, 2005, Mr. Maldonado informed the Grievance Committee that he had not heard from the respondent regarding the status of his case. Mr. Maldonado's letter was forwarded to the respondent for a response. By letter dated February 1, 2006, Mr. Maldonado advised the Grievance Committee that he still had not received a response from the respondent. This second letter was forwarded to the respondent, who was directed to submit a response to the Grievance Committee by March 3, 2006. In a response delivered by hand to the Grievance Committee on March 6, 2006, the respondent stated that the motion for a default judgment was denied and the action was dismissed. By order dated January 31, 2005, the Supreme Court, Westchester County, dismissed the complaint, notwithstanding the defendant's default, because the respondent failed to move for a default judgment until 2004, three years after the date by which to file such a motion expired.

The Grievance Committee re-opened the Maldonado matter to investigate the respondent's continued neglect. At his appearance before the Grievance Committee on July 13, 2006, the respondent testified that, although he received a copy of the order dismissing the action in February 2005, he failed to advise Mr. Maldonado about the dismissal until March 2006, and that he had no explanation for his failure. Nor did he have an explanation for his failure to timely file the motion for a default judgment. As a result, Mr. Maldonado is now precluded from seeking any appellate remedies.

Annexed to the Grievance Committee's motion papers is a proposed petition dated October 17, 2007, containing 11 charges of professional misconduct.

In opposition to the motion, the respondent contends, inter alia, that he does not pose an "immediate threat to the public interest" because the allegations relate to complaints from several years ago.

Based on the foregoing, 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) and (iii), pending further order of this court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him, and the matter is referred to a Special Referee to hear and report.

CRANE, RIVERA, SPOLZINO, SKELOS and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court