Appellate Division: Second Judicial Department

M71982

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A. GAIL PRUDENTI, P.J.

REINALDO E. RIVERA

ROBERT A. SPOLZINO

PETER B. SKELOS

HOWARD MILLER, JJ.

2006-09233 In the Matter of Cheryl K. Brodsky, admitted as Cheryl Kim Brodsky, and attorney and counselor-at-law. Grievance Committee for the Second and Eleventh Judicial Districts, petitioner; Cheryl K. Brodsky, respondent. (Attorney Registration No. 2506673)

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 pursuant to 22 NYCRR 691.4(l)(1)(i) upon a finding that she is guilty of professional misconduct immediately threatening the public interest in that she has failed to comply with the lawful demands of the court and the Grievance Committee in connection with an investigation into a complaint of professional misconduct filed against her; 2) authorizing the Grievance Committee to institute and prosecute a disciplinary proceeding against her based upon a petition dated April 8, 2008, which is annexed to the Order to Show Cause; 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. By decision and order on motion dated January 24, 2007, the court granted the Grievance Committee's motion for an order directing the respondent to submit to an examination by a qualified medical expert to determine whether she was incapacitated from continuing to practice law by reason of mental illness or infirmity, pursuant to 22 NYCRR 691.13(b), and directed the respondent to submit to an examination to be scheduled by the Grievance Committee. By decision and order on motion dated June 14, 2007, the court denied the respondent 's motion for an order vacating the decision and order on motion dated January 24, 2007. By decision and order on motion dated November 28, 2007, the court denied a motion by the respondent to vacate the decision and order dated January 24, 2007 and to strike the underlying complaint. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on March 13, 1993, under the name Cheryl Kim Brodsky.

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), the respondent, Cheryl K. Brodsky, admitted as Cheryl Kim Brodsky, 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, Cheryl K. Brodsky, admitted as Cheryl Kim Brodsky, 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, Cheryl K. Brodsky, admitted as Cheryl Kim Brodsky, 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 herself 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 Cheryl K. Brodsky, based on the petition dated April 8, 2008; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel, Grievance Committee for the Second and Eleventh Judicial Districts, Renaissance Plaza, 335 Adams Street, Suite 2400, Brooklyn, N.Y. 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 her of a copy of this decision and order on motion, the respondent, Cheryl Brodsky, admitted as Cheryl Kim Brodsky, 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 Elaine Jackson Stack, a retired Justice of the New York State Supreme Court, Tenth Judicial District, One The Birches, Roslyn, N.Y. 11576-171, as Special Referee to hear and report, together with her findings on the issues, and to submit a 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, Cheryl K. Brodsky, admitted as Cheryl Kim Brodsky, 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 her 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 her failure to comply with lawful demands of the Grievance Committee for the Second and Eleventh Judicial Districts.

At present, the respondent is the subject of one complaint of professional misconduct. On April 27, 2006, the Grievance Committee received a complaint from Paul J. Kenny, who then served as Deputy Chief Court Attorney in the Supreme Court, Kings County. The respondent had represented to Mr. Kenny, in the context of arranging an appointment for a job interview, that she was married to a Supreme Court Justice. Mr. Kenny had been informed by other individuals that such was not the case.

The Grievance Committee examined the respondent under oath on June 6, 2006. During that examination, the respondent admitted that she has referred to herself as the Judge's wife although she is not officially married to him.

At its September 2006 meeting, the Grievance Committee voted to seek an order from the court directing the respondent to be examined by a qualified medical expert to determine whether she was incapacitated from continuing to practice law, and subsequently moved for that relief. The respondent opposed the Grievance Committee's motion, noting that there was no basis to even remotely suggest mental illness and that she would not submit to any such examination. By decision and order on motion dated January 24, 2007, the court granted the motion.

By letter dated January 30, 2007, the Grievance Committee served the respondent with the order directing her to be examined by a qualified medical expert and directed her to contact Dr. Azariah Eshkenazi of Forest Hills, Queens, to schedule an appointment. On February 6, 2007, the respondent called Dr. Eshkenazi to cancel her appointment. She indicated to Grievance Counsel that she had just consulted with an unnamed attorney and would file a motion to vacate the aforesaid decision and order on motion within 30 days.

The respondent's pro se motion to vacate was denied in its entirety by decision and order on motion dated June 14, 2007. The Grievance Committee served the respondent with that order on June 20, 2007. In a telephone conversation with the respondent on that date, Grievance Counsel again advised her to schedule an appointment with Dr. Eshkenazi. That conversation was confirmed by letter dated June 21, 2007.

On June 21, 2007, the respondent telephoned Dr. Eshkenazi and indicated that she was not scheduling an appointment with him and would handle the matter through the courts. On June 22, 2007, the respondent left a message informing Grievance Counsel that she intended to file opposition papers again on this case. The court denied the respondent's subsequent motion to vacate by decision and order on motion dated November 28, 2007.

On November 30, 2007, the Grievance Committee served that order on respondent and again advised her to schedule an appointment with Dr. Eshkenazi.

By letter dated December 7, 2007, the respondent informed Grievance Counsel that she considered the Grievance Committee's prosecution of this matter to constitute the criminal act of harassment and warned that she would file charges.

Despite the clear directive contained in the court's decision and order on motion dated January 24, 2007, and the numerous verbal and written directives by Grievance Counsel, the respondent has failed to schedule and attend an examination by the designated medical expert. She has thereby prevented the doctor from determining and reporting to the court whether she is incapacitated from continuing to practice law by reason of mental infirmity or illness.

A petition dated April 8, 2008, which contains one charge of professional misconduct based upon respondent's failure to cooperate, is annexed to the Grievance Committee's order to show cause.

In opposition to the Grievance Committee's motion, the respondent maintains that the complaint is blatantly false and is the result of unauthorized calls made by the complainant "to persons that the [r]espondent primarily does not know."

In essence, the respondent contends that she has not failed to cooperate but has properly opposed actions that she has shown to constitute clear misconduct on the part of the complainant and petitioner. She maintains that her actions in no way threaten the public interest. Rather, this entire matter amounts to baseless claims against the respondent to which she has properly defended herself. In the respondent's view, the Grievance Committee is using an illegal tool to threaten her license and harm her reputation. She concludes with the assertion that it is not misconduct for the respondent to not allow repetitive abusive behavior by the Grievance Committee.

Notwithstanding the respondent's contentions that she poses no threat to the public and is not guilty of any professional misconduct, the fact remains that she has failed to comply with a clear order of this court to submit to a medical examination and remains steadfast in her refusal to do so.

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) pending further order of this court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent based on the petition dated April 8, 2008, the respondent is directed to answer within 20 days, and this matter is referred to a Special Referee to hear and report.

PRUDENTI, P.J., RIVERA, SPOLZINO, SKELOS and MILLER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court