Appellate Division: Second Judicial Department

M85917

E/nl

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

ROBERT A. SPOLZINO

MARK C. DILLON, JJ.

2008-07114 In the Matter of James T. Hytner, admitted as James Thomas Hytner, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; James T. Hytner, respondent. (Attorney Registration No. 2351716)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District 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 he is guilty of professional misconduct immediately threatening the public interest in that he has failed to cooperate with the Grievance Committee's investigation of five complaints; 2) authorizing it to institute and prosecute a disciplinary proceeding against the respondent based on a petition dated February 9, 2009; and 3) directing that a hearing be held before a Special Referee appointed to hear and report with respect to the issues raised. By order to show cause dated July 24, 2008, the Grievance Committee had moved to direct the respondent to appear within 10 days with certain banking documentation and to suspend respondent on an interim basis in the event of his failure to comply. During the pendency of that motion, the Grievance Committee received additional complaints against the respondent. Accordingly, the Grievance Committee now seeks to withdraw that motion and to replace it with the instant one. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on September 26, 1990, under the name James Thomas Hytner.

Upon the papers submitted in support of the motions and no papers having been submitted in opposition or relation thereto, it is

ORDERED that the motion brought by order to show cause dated July 24, 2008, is marked withdrawn; and it is further,

ORDERED that the motion, inter alia, to suspend the respondent, James T. Hytner, admitted as James Thomas Hytner, is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i), the respondent, James T. Hytner, admitted as James Thomas Hytner, 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, James T. Hytner, admitted as James Thomas Hytner, 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, James T. Hytner, admitted as James Thomas Hytner, 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 institute and prosecute a disciplinary proceeding in this court, against James Hytner, admitted as James Thomas Hytner, based on the petition dated February 9, 2009; and it is further,

ORDERED that the Grievance Committee shall serve the petition upon the Special Referee and file the original petition in the office of the Clerk of this court within 20 days after receipt of a copy of this decision and order on motion; and it is further,

ORDERED that Rita E. Adler, Chief Counsel, 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, James Hytner, admitted as James Thomas Hytner, 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 Peter T. Affatato, Esq., Briarcliffe Building, 1055 Stewart Avenue, Bethpage, N.Y. 11714, as Special Referee to hear and report, together with his finding 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, James Hytner, admitted as James Thomas Hytner, 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 an investigation of the Grievance Committee for the Tenth Judicial District.

The Grievance Committee received a complaint dated February 26, 2007, from counsel to the Public Administrator of Queens County alleging that the respondent failed to render an accounting for the Vincent O'Brien Benefit Trust which the respondent had created. Vincent O'Brien died on June 18, 2006, without a will.

By letter dated March 28, 2007, the Grievance Committee notified the respondent of the complaint and requested an answer within 15 days. In view of the respondent's failure to comply, the Grievance Committee sent him a certified letter, dated April 19, 2007, requesting his answer within 5 days and informing him that failure to respond or otherwise cooperate constitutes professional misconduct independent of the merits of the underlying complaint. By certified letter dated May 30, 2007, the Grievance Committee advised the respondent that Court Rules authorized a motion to suspend any attorney who failed to cooperate with a disciplinary investigation and demanded an answer within 10 days.

The respondent submitted a reply dated August 20, 2007, in which he averred that it was his understanding that he had provided all of the required documentation to the Public Administrator. The Grievance Committee contacted the Office of the Public Administrator, Lois M. Rosenblatt, who advised that the respondent's failure to file an accounting had necessitated the filing of an order to show cause, returnable October 18, 2007, to punish him for contempt. The contempt proceeding was adjourned to October 25, 2007, at the respondent's request due to a medical issue.

By letter dated December 12, 2007, the Grievance Committee directed the respondent to advise it of the status of the contempt proceeding within 10 days. The respondent failed to reply.

By certified letter dated January 22, 2008, the Grievance Committee reminded the respondent that failure to cooperate constituted professional misconduct independent of the merits of the underlying complaint and instructed him to reply within 5 days. Although postal records reflected a delivery date of January 24, 2008, no response was received. By certified letter dated February 6, 2008, the Grievance Committee demanded a reply within 10 days and warned the respondent that remedial action would be pursued to compel his cooperation should he fail to comply. Although postal records indicate a delivery date of February 8, 2008, no response was received.

The Grievance Committee received a complaint from Elena Reed, dated December 4, 2007, alleging, inter alia, that the respondent had failed to remit a real estate contract deposit to her new attorney despite repeated requests. By letter dated December 18, 2007, the Grievance Committee requested the respondent's answer to that complaint within 15 days. Inasmuch as no response was received, the Grievance Committee sent the respondent a certified letter dated January 22, 2008, advising him that failure to reply or otherwise cooperate constituted professional misconduct independent of the merits of the underlying complaint and requested an answer within 5 days. Although postal records indicate a delivery date of January 24, 2008, no response was received.

By certified letter dated February 6, 2008, the Grievance Committee demanded the respondent's answer forthwith, together with any explanation for his failure to timely cooperate, and warned that remedial action would be pursued to compel his cooperation should he fail to respond within 10 days. Although postal records reflect a delivery date of February 8, 2008, no response was received.

A judicial subpoena and subpoena duces tecum were personally served upon the respondent on February 25, 2008, requiring his appearance on March 5, 2008, for an examination under oath and production of his files with respect to both the complaints filed by the Public Administrator and Elena Reed. On or about March 4, 2008, the respondent was granted an adjournment in order to retain counsel. The adjournment was granted with the understanding that counsel would contact the Grievance Committee.

By certified letter dated April 1, 2008, the Grievance Committee notified the respondent that it had not been contacted by any counsel on the respondent's behalf and that he should appear for an examination under oath on April 15, 2008. At the respondent's request, the examination was adjourned to April 22, 2008. The respondent appeared at the examination and it was agreed that he would provide the receipt evidencing his accounting filed with the Public Administrator and all banking documentation from his IOLA account regarding the Elena Reed contract down payment. The respondent nevertheless failed to provide the information.

The respondent was personally served with a judicial subpoena requiring his appearance on June 17, 2008, with respect to the pending complaints. The respondent notified the Grievance Committee by fax dated June 16, 2008, that he would not be appearing due to a personal issue, that he would submit documents on June 17, 2008, and that the Grievance Committee could advise him if his appearance was required at a later date. The respondent provided the filing receipt for the accounting with the Public Administrator's office but none of the banking documentation from the Elena Reed transaction. He also provided a letter from a physician indicating that he had been experiencing anxiety attacks which were now under control. By letter dated June 16, 2008, counsel to the Public Administrator advised the Grievance Committee that a warrant for the respondent's arrest had been sent to the Sheriff before the respondent submitted an accounting. After receiving the accounting, the Public Administrator filed Objections to the Accounting which included allegations of conversion of trust funds.

By certified letter dated June 23, 2008, the Grievance Committee notified the respondent that his appearance was still required pursuant to the subpoena and that he should be prepared to testify about his IOLA account and the Objections to the Accounting filed by the Public Administrator. Due to a scheduling error in the Grievance Committee's office, it was erroneously believed that the examination date was July 8, 2008, and that the respondent had failed to appear. Once the error was realized, the Grievance Committee apprised the respondent by telephone message, fax, and overnight mail that the correct scheduled date for the examination was July 10, 2008. The respondent nevertheless failed to appear or otherwise contact the Grievance Committee.

By letter dated August 22, 2008, the Honorable John M. Czygier, Jr., informed the Grievance Committee that the respondent had failed to appear at numerous court conferences which ultimately led to a decision adverse to his clients. By letter dated September 8, 2008, the Grievance Committee notified the respondent of the complaint and requested his written response within 10 days. No response was received.

By certified letter dated November 5, 2008, the Grievance Committee advised the respondent that his failure to cooperate constituted professional misconduct independent of the merits of the complaint and instructed him to submit a reply within 5 days. Although postal records reflect a delivery date of November 5,2008, no response was received.

By certified letter dated December 17, 2008, the Grievance Committee advised the respondent that it was authorized to move for the suspension of any attorney who failed to cooperate and demanded his answer, along with any explanation of his failure to cooperate, within 10 days. Although postal records reflect a delivery date of December 19, 2008, no response was received.

The Grievance Committee received a complaint, dated September 11, 2008, from William E. Traxler and Katherine M. Traxler alleging that the respondent had failed to respond to inquiries regarding escrow money due them from a closing. By letter dated September 26, 2008, the Grievance Committee advised the respondent of the complaint and requested his answer within 10 days. No response was received. By certified letter dated November 5, 2008, the Grievance Committee reminded the respondent that failure to cooperate constituted professional misconduct independent of the merits of the complaint and requested his answer within 5 days. Although postal records reflect a delivery date of November 5, 2008, no response was received.

By certified letter dated December 17, 2008, the Grievance Committee advised the respondent that it was authorized to move for the suspension of any attorney who failed to cooperate and demanded his answer within 10 days. Although postal records reflect a delivery date of December 19, 2008, no response was received.

The Grievance Committee received a complaint dated September 12, 2008, from Craig R. Margott alleging that the respondent failed to respond to inquiries regarding a Special Needs Trust that the respondent was retained to create. By letter dated September 26, 2008, the Grievance Committee apprised the respondent of the complaint and requested an answer within 10 days. No response was received.

By certified letter dated November 5, 2008, the Grievance Committee reminded the respondent that failure to cooperate constituted professional misconduct independent of the merits of the complaint and requested an answer within 5 days. Although postal records reflect a delivery date of November 5, 2008, no response was received.

By certified letter dated December 17, 2008, the Grievance Committee advised the respondent that it was authorized to move for the suspension of any attorney who failed to cooperate and demanded his answer within 10 days. Although postal records reflect a delivery date of December 19, 2008, no response was received.

By letter dated February 2, 2009, the Grievance Committee requested leave to withdraw the prior pending order to show cause in order to bring the instant application which includes all complaints pending against the respondent.

By deliberate failure to respond in these matters, despite numerous letters and subpoenas served upon him, the respondent has obstructed the Grievance Committee's legitimate investigation. Accordingly, the Grievance Committee's motion to suspend him and authorize a disciplinary proceed against him is granted and the Grievance Committee's request to withdraw its order to show cause dated July 24, 2008, is granted and that motion is marked withdrawn.

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

ENTER:

James Edward Pelzer

Clerk of the Court