Appellate Division: Second Judicial Department

M100912

E/ct

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

STEVEN W. FISHER, JJ.

2009-08464 In the Matter of Timothy C. Quinn, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Timothy C. Quinn, respondent. (Attorney Registration No. 1089572)

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 on an interim basis, 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 admittedly misappropriated client funds in excess of $70,000, in violation of 9-102(a), made cash withdrawals and negotiated checks drawn to cash from his attorney escrow account, in violation of DR 9-102(e), and made electronic withdrawals by bank transfers without clients' prior written consent, in violation of DR 9-102(e); (2) authorizing the institution of a disciplinary proceeding; (3) directing the respondent to answer the petition within 20 days; and (4) referring the issues raised to 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 First Judicial Department on December 16, 1963. Application by the respondent to adjourn the motion for a period of three months.

Upon the papers submitted in support of the motion and the papers submitted in opposition thereto, and upon the application, 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, Timothy C. Quinn, 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, Timothy C. Quinn, 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, Timothy C. Quinn, 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 Ninth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this court against Timothy C. Quinn, based on a petition dated November 5, 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 order; and it is further,

ORDERED that Gary L. Casella, Chief Counsel, Grievance Committee for the Ninth Judicial District, 399 Knollwood Road, Suite 200, White Plains, N.Y. 10603, 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, Timothy C. Quinn, 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 Frank M. Headley, Jr., Esq., c/o Bertine, Hufnagel & Headley, 700 White Plains Road, Scarsdale, N.Y. 10583, 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, Timothy C. Quinn, 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); and it is further,

ORDERED that the respondent's application for an adjournment is denied.

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 respondent is the subject of a complaint by Joseph Coviello. The respondent, a customer at complainant's barber shop, handled the sale of complainant's New York home incident to his retirement and relocation to Florida. On or about July 17, 2008, the respondent deposited the purchaser's down payment of $82,000 into his JP Morgan Chase Bank, N.A., IOLA account. That sum was drawn down via numerous cash withdrawals and disbursements to pay the respondent's creditors. Although complainant received net proceeds from the closing on September 8, 2008, the respondent failed to deliver the down payment.

Complainant never agreed to allow the respondent to retain, borrow or use the down payment but was aware of the respondent's financial problems. He tacitly agreed to briefly forbear on collection. As time passed, complainant made inquiry of the respondent who gave him a handwritten note in which he acknowledged complainant's entitlement to $73,657.41 and gave reasons for his delay.

Mr. Coviello filed a complaint with the Grievance Committee in May 2009. In his answer, the respondent acknowledged using complainant's funds without his permission to avoid financial ruin. The respondent expressed an intent to pay complainant the $73,657.41 he owed out of the $82,000 down payment and outlined a plan to raise funds from which to make complainant whole.

IOLA records supplied by the respondent revealed cash withdrawals and electronic transfers in violation of DR 9-102(e). A petition, dated November 5, 2009, contains four charges of professional misconduct, including misappropriating client funds, making cash withdrawals and withdrawals by bank transfer, and engaging in conduct adversely reflecting on his fitness as a lawyer, and is annexed to the Grievance Committee's order to show cause.

In response to the order to show cause, the respondent submitted a letter, dated January 25, 2010, indicating that he has retired from the practice of law and resigned from the New York State Bar. However, Office of Court Administration records indicate that he is delinquent for the registration periods from 2006-2007 through 2010-2011.

Previously, in his written answer to the complaint dated August 3, 2009, the respondent acknowledged his debt to complainant and indicated his intent to repay it. He attributes his out-of-character behavior to pure panic and admits that he used the money to stave off financial ruin and becoming homeless. At the time, the respondent was trying to live with the fact that he had prostate cancer and a experienced serious mental lapse. He noted that he had lived through the financial failure of his firm, two bankruptcies and the loss of his home without ever using clients' funds without permission. He is thoroughly remorseful.

The respondent was trying to locate his file on the subject closing as well as his IOLA records, which were disrupted by major renovations in the office required by the Stamford Fire Marshall. With respect to his source of funds for the repayment, the respondent represented that he has a business partner in California who is poised to open an off-shore bank and insurance company with assets in excess of $3 billion. The project was scheduled to commence in September 2009 with a personal loan of up to $500,000 to the respondent as an incentive to devote his full time and energies to it. The respondent conceded that his total debts amounted to $420,000.

The respondent's purported retirement does not eradicate the Grievance Committee's allegations of professional misconduct. Nor is there any record of the respondent's submission of a resignation acknowledging his inability to defend against the Grievance Committee's charges.

Although afforded a two week extension in which to submit an answer, by January 27, 2009, the respondent failed to comply. Notwithstanding his default, he requested a three month adjournment on February 19. That request was denied by the Clerk of the Court.

A subsequent request for an adjournment by the respondent's counsel is denied.

Based on the foregoing, the Grievance Committee's motion is granted, the respondent is suspended pursuant to 22 NYCRR 691.4(l)(1)(iii), the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding based on the petition dated November 5, 2009, the respondent is directed to submit an answer within 20 days, and that the issues raised are referred to a Special Referee to hear and report.

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

ENTER:

James Edward Pelzer

Clerk of the Court