Appellate Division: Second Judicial Department

M82612

E/nl

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

ROBERT A. SPOLZINO

STEVEN W. FISHER, JJ.

2008-10545 In the Matter of Mark S. Kosak, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Mark S. Kosak, resppondent. (Attorney Registration No. 2042687)

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)(i), based upon professional misconduct immediately threatening the public interest in that he obstructed its legitimate function in its investigation of a complaint filed against him. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 9, 1986.

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 pursuant to 22 NYCRR 691.4(l)(1)(i), the respondent, Mark S. Kosak, 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 on the court's own motion, pursuant to Judiciary Law § 90, during the period of suspension and until further order of this court, the respondent, Mark S. Kosak, 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 Mark S. Kosak, based on the Grievance Committee's affirmation dated October 3, 2008; 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 this decision and order on motion, the respondent, Mark S. Kosak, 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 Geoffrey J. O'Connell, a retired Justice of the Supreme Court, 10th Judicial District, 617 DuBois Avenue, Valley Stream, N.Y. 11581, 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, Mark S. Kosak, 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 respond to numerous letters and subpoenas served upon him by the Grievance Committee for the Tenth Judicial District.

The Grievance Committee received a complaint dated March 11, 2008, from the respondent's former client, Helen Pineiro, alleging that the respondent had failed to respond to repeated inquiries regarding two legal matters he was handling regarding the trust and last will and testament of the complainant's late father, both of which were prepared by the respondent. The complainant's brother had initiated an action to set aside a deed transfer in the Supreme Court, Kings County, and commenced a separate action in the Surrogate's Court, Kings County, seeking issuance of limited letters of administration.

By letter dated March 19, 2008, the Grievance Committee requested an answer within 10 days and warned the respondent that an unexcused failure to comply constituted professional misconduct independent of the merits. The respondent submitted a response dated April 1, 2008, acknowledging that he had been retained in the two subject matters but insisting that those matters were not being neglected.

Subsequently, Ms. Pineiro advised the Grievance Committee that her answer had been stricken as a result of the respondent's neglect. By letter dated April 10, 2008, the Grievance Committee requested copies of the respondent's legal files and retainer agreements for both matters as well as an explanation of how he could represent a party in an action where he was a necessary witness. By letter dated April 17, 2008, Michael D. Siegel advised the Grievance Committee that his firm was now legal counsel for Ms. Pineiro and that they were unable to obtain the respondent's cooperation. By letter dated April 18, 2008, the respondent advised the Grievance Committee that he was in the process of sending the files to the new attorney, that he had no retainer agreements, that he now agrees that, as a necessary witness, he could not have properly represented Ms. Pineiro, and that he was "saddened" by the judgment against her.

By letter dated April 28, 2008, the Grievance Committee advised the respondent that his answer was not responsive and directed him to appear for an examination under oath on May 9, 2008, and to deliver his legal files on May 2, 2008. The Grievance Committee reminded the respondent that his failure to cooperate could result in a motion for his interim suspension.

The Grievance Committee served the respondent with a subpoena and subpoena duces tecum requiring his appearance and the production of the two legal files on June 3, 2008. On the morning of June 3, 2008, the respondent advised the Grievance Committee that he would not appear for the examination under oath but would deliver the files by June 9, 2008. He requested a three-to-four week adjournment to obtain counsel.

By certified letter dated June 3, 2008, the Grievance Committee notified the respondent that he had two weeks to obtain counsel and that his counsel should telephone the Grievance Committee by June 17, 2008. Should counsel fail to do so, the respondent would be required to appear for an examination under oath on June 20, 2008. The Grievance Committee warned the respondent that no further accommodations or adjournments would be granted and that his continuing failure to cooperate could lead to a motion for his interim suspension. That letter was returned "unclaimed" by the Post Office.

Neither the respondent nor any counsel acting on his behalf contacted the Grievance Committee. Nor did the respondent appear for the scheduled examination on June 20, 2008. The respondent was served at his home address with a letter, dated July 7, 2008, advising him to deliver his legal files to the Grievance Committee's offices by July 21, 2008 and to appear for an examination under oath on August 8, 2008. Once again, the Grievance Committee advised the respondent that his failure to cooperate would result in a motion for his interim suspension. The respondent, nevertheless, submitted a letter to the Grievance Committee, dated July 16, 2008, requesting that the document production and examination under oath be adjourned to August 4, 2008, and August 18, 2008, respectively.

The Grievance Committee advised the respondent that his request was denied and that this matter would proceed pursuant to the subpoena.

The respondent left a telephone message on the Grievance Committee's general mail box on the evening of July 18, 2008, denying receipt of any subpoena and advising Grievance Counsel not to even think about moving for his interim suspension or she would be very sorry about what would happen to her. The Grievance Committee filed an incident report with the Suffolk County Police Department on July 21, 2008.

By letter dated July 22, 2008, the Grievance Committee advised the respondent that "[t]he content, tone and implication of [his] message has been reported to appropriate law enforcement agencies" and directed him to appear with his legal file on August 8, 2008, or risk immediate suspension. By letter dated August 5, 2008, the respondent apologized for his "emotional telephone message" and requested an adjournment to September 8, 2008, as he was a solo practitioner continuing to deal with family health issues. By letter dated August 7, 2008, the Grievance Committee advised the respondent that his request was denied and that he was required to appear on August 8, 2008, or risk a motion for his interim suspension and authorization to commence a disciplinary proceeding against him.

The respondent again failed to appear. Five efforts to effect personal service of the Grievance Committee's order to show cause seeking an interim suspension and authorization to commence a disciplinary proceeding at both his registered business and home addresses were unsuccessful. Based upon a field investigation, the Grievance Committee learned that the respondent had moved from his registered business address in August 2008 with no forwarding address. Accordingly, substituted service was authorized.

The respondent submitted an affirmation in opposition in which he maintains that the relief requested by the Grievance Committee is extreme, premature, and would result in severe hardship to a solo practitioner who supports his significant other and cares for his 82-year-old mother. He denies deliberately obstructing the Grievance Committee's investigation.

The respondent questions the alleged service of the subpoena and subpoena duces tecum on May 19, 2008, upon an office assistant who has absolutely no authority to accept service on his behalf.

Per the respondent, his timely response to the Grievance Committee's initial letter and a follow-up letter is evidence that he has not deliberately obstructed the Grievance Committee's investigation.

Notwithstanding the respondent's opposition to the Grievance Committee's motion, he has still not produced the requested materials and has continued to frustrate the Grievance Committee's efforts. Under these circumstances, the Grievance Committee's motion is granted, the respondent is found to constitute an immediate threat to the public interest due to his persistent pattern of non-cooperation, and he is immediately suspended pursuant to 22 NYCRR 691.4(l)(1)(i). It is further ordered that the Grievance Committee serve and file a petition within 30 days, that the respondent submit an answer within 20 days, and that this matter is referred to a Special Referee to hear and report and to submit a report within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda.

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

ENTER:

James Edward Pelzer

Clerk of the Court