Appellate Division: Second Judicial Department

M74349

E/nl

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

ROBERT A. SPOLZINO

FRED T. SANTUCCI, JJ.

2007-06498 In the Matter of Bryan J. Holzberg, admitted as Bryan Joel Holzberg, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Bryan J. Holzberg, respondent. (Attorney Registration No. 1924968)

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)(iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest in that he has committed acts of professional misconduct and upon other uncontroverted evidence of professional misconduct; (2) authorizing the Grievance Committee to serve and file a supplemental petition dated April 21, 2008; (3) referring the supplemental charges to be incorporated into the disciplinary proceeding presently pending before the previously designated Special Referee; and (4) directing the respondent to answer the supplemental petition. By decision and order on application of this court dated November 21, 2007, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent based on 25 charges of professional misconduct set forth in a verified petition dated July 9, 2007, and the issues raised were referred to the Honorable Stanley Harwood, as 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 October 26, 1983, under the Bryan Joel Holzberg.

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)(iii), the respondent, Bryan J. Holzberg, admitted as Bryan Joel Holzberg, 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, Bryan J. Holzberg, admitted as Bryan Joel Holzberg, 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, Bryan J. Holzberg, admitted as Bryan Joel Holzberg, 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 Tenth Judicial District is hereby authorized to serve and file the supplemental petition dated April 21, 2008, to be incorporated into the disciplinary proceeding presently pending before the Honorable Stanley Harwood; 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 within 20 days after service upon him of a copy of this order, the respondent, Bryan J. Holzberg, admitted as Bryan Joel Holzberg, 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 supplemental petition and any answer thereto are referred to the Honorable Stanley Harwood, as Special Referee to hear and report, together with the issues previously assigned on the same matter; and it is further,

ORDERED that if the respondent, Bryan J. Holzberg, admitted as Bryan Joel Holzberg, 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.

The supplemental petition contains 17 charges of professional misconduct pertaining to three individuals: George Begakis, Louis Di Lauro and Jack Fermaglich, involving allegations similar to the initial petition, i.e., repeated neglect of legal matters entrusted to the respondent and fabrications that he made or created with respect thereto.

George Begakis

On or about April 24, 2003, the respondent was retained by George Begakis to represent Aegean General Contracting, Inc. (hereinafter Aegean), to collect payment under a written contract to provide painting and related interior and exterior services to the Rosenberg Housing Group, Marion Scott Real Estate (hereinafter RMS) on public housing projects owned by the New York City Housing Authority (hereinafter NYCHA), and to file public improvement liens. The retainer agreement specified a set contingency with a retainer of $5,800. In June 2003, the respondent informed Mr. Begakis that he had filed public improvement liens on the subject public housing projects when no liens were filed or placed against any of the subject buildings. In May 2003, the respondent drafted a summons and complaint on behalf of Aegean, purchased an index number in Supreme Court, New York County, and informed Mr. Begakis that he commenced an action on behalf of Aegean. However, the respondent never served RMS or NYCHA.

Thereafter, the respondent provided Mr. Begakis false and misleading information about the status of his legal matter. Such false and misleading information include statements that: (1) the lawyers representing RMS and NYCHA agreed to settle the action for the full amount due under the contract, (2) RMS and NYCHA reneged on the agreement to settle and had appealed, (3) RMS and NYCHA lost the appeal and the respondent had obtained a judgment against them, and (4) the respondent received a check in full payment, including interest, totaling $89,682. On January 23, 2007, the respondent tendered a check in the amount of $64,382 representing Aegean's share of the recovery. Aegean deposited the check, but was advised that a stop payment order had been issued. In fact, the respondent never obtained a judgment against either RMS or NYCHA and never collected any payment from the purported action.

Louis Di Lauro

In the summer of 2000, Mr. Di Lauro retained the respondent to recover money owed by Bruce Ferrini under a contract for the sale of certain merchandise. The respondent provided Mr. Di Lauro a draft complaint and thereafter claimed he commenced an action on Mr. Di Lauro's behalf in the United States District Court for the Eastern District of New York. The respondent, however, never filed such action.

Thereafter, the respondent provided Mr. Di Lauro false and misleading information about the status of his legal matter. Such false and misleading information include statements from July 2000 to July 2003 that: (1) Mr. Di Lauro's case was pending in the United States District Court for the Eastern District of New York; and (2) Mr. Di Lauro's case was delayed for various reasons, resulting in lack of progress.

In or about July 2003, the respondent informed Mr. Di Lauro that he had obtained a judgment against Bruce Ferrini. The respondent provided Mr. Di Lauro a purported order granting a default judgment, bearing the alleged signature of U.S. Magistrate Judge Ronald L. Ellis under case number 02 CIV 4910. Thereafter, the respondent informed Mr. Di Lauro that he was experiencing difficulties collecting on the judgment. In response to inquires by his client, the respondent provided Mr. Di Lauro with a portion of an affidavit he prepared for use in a purported matrimonial action pending in the Court of Common Pleas, Mahoning County, Ohio, entitled Ferrini v Ferrini, under Index No. 2005 CVM 1136, in which the respondent claimed a stay prevented the collection of Mr. Di Lauro's judgment.

In or about September 22, 2005, the respondent provided a check to Mr. Di Lauro in the amount of $156,500 claiming it was a partial payment on the Ferrini judgment and informed his client that he could deposit the check after October 8, 2005. The check was deposited but returned for insufficient funds.

In or about August 24, 2006, the respondent provided Mr. Di Lauro two undated checks from his IOLA account totaling $43,940 and informed him that they were in anticipation of receipt of funds from the Trustee in the Ohio Bankruptcy of Bruce Ferrini, and that upon respondent's receipt of the funds, he would provide his client with the date of deposit for the checks. In or about March 2007, the respondent provided Mr. Di Lauro a copy of a purported order from the United States Bankruptcy Court for the Northern District of Ohio, modifying distribution in the Ferrini bankruptcy, dated March 12, 2007, containing the name Melanie L. Cyganowski, U.S. Bankruptcy Judge.

Investigation by the Grievance Committee revealed that there is no record of Mr. Di Lauro's case in the Eastern District of New York and that there is no case bearing index number 2005 CVM 1136 in the Court of Common Pleas, Mahoning County, Ohio. U.S. Bankruptcy Judge M. Cyganowski was a Bankruptcy Judge in the Eastern District of New York, not the Northern District of Ohio. Further, the case number affixed to the purported order from the United States Bankruptcy Court in the Northern District of Ohio is actually the case number for a Chapter 13 Voluntary Petition filed in the Eastern District of New York, over which Judge Cyganowski presided and in which a different debtor was represented by the respondent.

Jack Fermaglich

In or about early 2006, the respondent was retained by Jack Fermalgich to prosecute an action relating to a proposed housing development on lands adjoining Mr. Fermaglich's residential property. The respondent prepared a summons and complaint, and advised his client that he had commenced an action in Supreme Court, Nassau County. At his client's request, the respondent provided a copy of the purported filed complaint, bearing Index No. 6440/06. The respondent never filed any action on Mr. Fermaglich's behalf.

Thereafter, the respondent provided Mr. Fermaglich false and misleading information about the status of his legal matter. The respondent provided his client with a purported Notice of Discovery and Inspection dated June 28, 2006, and a Second Notice dated July 27, 2006. He informed his client that his case had been assigned to Justice Winslow, and that, while a preliminary conference had been scheduled, it was delayed.

At an investigative appearance before the Grievance Committee, the respondent falsely testified under oath when he denied ever telling his client that (1) the action was filed with the court, (2) the action was assigned to Justice Winslow, and (3) a preliminary conference had been scheduled in the case.

In opposition to the motion, the respondent summarily denies the allegations in the supplemental petition.

Based upon 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)(iii), pending further order of this court, the Grievance Committee is authorized to serve and file the supplemental petition dated April 21, 2008, and the issues raised in the supplemental petition and any answer thereto are referred to the Honorable Stanley Harwood, as Special Referee to hear and report, together with the issues previously assigned on the same matter.

PRUDENTI, P.J., MASTRO, RIVERA, SPOLZINO and SANTUCCI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court