Appellate Division: Second Judicial Department

M92642

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A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON, JJ.

2009-05481 In the Matter of Cesar G. Cardona, admitted as Cesar G. Cardona, Jr., an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Cesar G. Cardona, respondent. (Attorney Registration No. 1666312)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts for an order: (1) suspending the respondent from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest in that there exist substantial admissions under oath that the respondent has committed an act or acts of professional misconduct and other uncontroverted evidence of professional misconduct; (2) authorizing it to institute and prosecute a disciplinary proceeding against the respondent based on a petition dated June 9, 2009, which is annexed to the order to show cause; (3) directing the respondent to submit an answer to the petition; and (4) appointing 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 Second Judicial Department on February 6, 1980, under the name Cesar G. Cardona, Jr.

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)(ii) and (iii), the respondent, Cesar G. Cardona, admitted as Cesar G. Cardona, Jr., 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 pursuant to Judiciary Law § 90, during the period of suspension and until further order of this court, the respondent, Cesar G. Cardona, admitted as Cesar G. Cardona, Jr., 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 Second, Eleventh, and Thirteenth Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this court against Cesar G. Cardona, admitted as Cesar G. Cardona, Jr., based on the petition dated June 9, 2009; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel to the Grievance Committee for the Second, Eleventh and Thirteenth 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 him of a copy of this order, 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 thereto are referred to the Honorable Stella Schindler, a former New York City Family Court Judge, 63 East Ninth Street, #8J, New York, N.Y. 10003, 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, Cesar G. Cardona, admitted as Cesar G. Cardona, Jr., 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 substantial admissions under oath and other uncontroverted evidence of professional misconduct.

The basis of the motion of the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts is the allegedly uncontroverted evidence and admissions made under oath by the respondent establishing that he converted funds entrusted to him as a fiduciary, incident to his practice of law.

On or about April 1, 2008, a check in the sum of $650 drawn on the respondent's escrow account was returned for insufficient/unavailable funds. The Grievance Committee's subsequent investigation revealed that between September 20, 2007, and July 25, 2008, the respondent improperly drew at least 18 escrow checks to his own order against clients' funds on deposit in the aforementioned escrow account. In addition, the respondent failed to maintain a ledger book or deposit slips for his escrow account as required.

At his investigative appearance on April 6, 2009, the respondent admitted that he drew the aforementioned escrow checks to pay personal expenses including, but not limited to, his mortgage and his son's tuition. The respondent also admitted problems with substance and alcohol abuse. The respondent was aware that his conduct was improper and, specifically, that in permitting the balance of funds in his escrow account to be depleted below the deposited amounts prior to the closings, he violated his fiduciary duty to the parties.

The respondent has submitted an affirmation in opposition to so much of the Grievance Committee's motion as seeks to immediately suspend him. The respondent maintains that there is an insufficient factual and/or legal basis upon which to conclude that he poses any threat whatsoever to the public interest. According to the respondent, his sworn statements before the Grievance Committee reflect the truthful admissions of a substance abuser who has sought and obtained professional treatment for the past two years for his addictions and has, to varying degrees of success, conquered his addictions. While he has admitted acts of professional misconduct under oath, the respondent asserts that none of his clients has suffered any economic loss, nor has he become the subject of any additional disciplinary complaints.

Given his admitted conversions, his ongoing dire financial circumstances, and the absence of evidence of long-term recovery from his addictions, we conclude that the respondent does constitute an immediate threat to the public interest and grant the Grievance Committee's motion to suspend him pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), to authorize a disciplinary proceeding based on the petition dated June 9, 2009, to direct the respondent to submit an answer within 20 days, and to refer this matter to a Special Referee for a hearing and the submission of a report within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda.

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

ENTER:

James Edward Pelzer

Clerk of the Court