Appellate Division: Second Judicial Department

M101942

E/ct

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

HOWARD MILLER, JJ.

2009-11782 In the Matter of Michael N. Durante, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Michael N. Durante, respondent. (Attorney Registration No. 2171189)

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 he has committed acts of professional misconduct and based upon other uncontroverted evidence of professional misconduct; (2) authorizing it to institute and prosecute a disciplinary proceeding based upon the allegations set forth in a petition dated December 28, 2009; (3) directing the respondent to answer the petition; 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 Second Judicial Department on February 3, 1988.

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, Michael N. Durante, 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, Michael N. Durante, 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 Michael N. Durante, based on the petition dated December 28, 2009; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel, 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 James A. Gowan, a retired Justice of the Supreme Court, Suffolk County, 90 Sequams Lane East, West Islip, N.Y. 11795, as Special Referee to hear and report, together with his findings 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, Michael N. Durante, 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 substantial admissions he has made under oath that he has committed acts of professional misconduct and other uncontroverted evidence of professional misconduct.

The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts initiated sua sponte investigations against the respondent when: (1) on May 19, 2008, it received a dishonored check report from the Lawyers' Fund for Client Protection relating to the respondent's attorney escrow account; and (2) on or about October 27, 2008, Judge Charles J. Markey, Supreme Court, Queens County, referred an issue of conversion to the Grievance Committee in connection with an order in which he had granted summary judgment to Marie Occhigrossi and awarded her a money judgment against the respondent in the sum of $60,000 plus interest.

In an answer dated November 7, 2008, submitted in response to the complaints, the respondent admitted that check No. 1838 in the amount of $2,000 and check No. 1839 in the amount of $3,210 were returned for insufficient funds. With respect to check No. 1838, the respondent was representing Steve Orefice of Bridgeport Fabricated Steel, who had sought the respondent's assistance in reinstating a loan. In March 2008, the respondent deposited approximately $5,000 into his escrow account at the direction of his client, such sum representing ready cash should a settlement be reached. Thereafter, the client requested the return of $2,000 for his personal use. The check was returned for insufficient funds, but a replacement check was promptly issued and cashed by the client. Check No. 1839 pertained to the respondent's representation of Elsie Howard, a/k/a Elycne Howard, whom the respondent had assisted in obtaining a reverse mortgage in June 2007. Ms. Howard asked the respondent to retain a portion of the proceeds for future use out of a fear that she would be unable to resist lending this money to family and friends. The respondent periodically gave Ms. Howard money to meet her various expenses. Check No. 1839 in the amount of $3,210 was returned for insufficient funds, but a replacement check was promptly issued and cashed by Ms. Howard.

The respondent denied any intent to convert the money and attributed the returned checks to his inattention in reconciling his escrow account owing to his being overwhelmed by a host of emotional and physical factors. In and around 2001, he began experiencing marital difficulties and his father passed away. The respondent, who had been suffering from severe rheumatoid arthritis, underwent a knee replacement in November 2005. While in the hospital, he was accidentally given a double dose of morphine and almost died. While recovering, in December 2005, he fell and his quadriceps tendon detached, requiring further major surgery. He was prescribed opiates as pain medication. In July 2006, he began suffering chest pains and was diagnosed with arterial blockage. He underwent surgery for a stent. In October 2006, the stent collapsed and further surgery was required to repair it. The repair was improperly done, as the implant impinged on another artery, requiring yet more surgery in January 2007. In March 2007, the respondent began experiencing chest pains again and it was discovered that he had a crimped artery, which required implant surgery. In April 2007, the respondent was diagnosed with an aneurysm in his right leg, which was surgically repaired. Two weeks later, he lost feeling in his right leg due to a hematoma from the aneurysm surgery. Additional surgery was required. During and after this period, the respondent was prescribed large doses of pain medication. The repeat surgeries and constant use of prescription opiates created a drug dependence and severe depression.

In May 2007, the respondent voluntarily hospitalized himself for detoxification at Huntington Hospital. Due to his history of heart disease, he was transferred to St. Francis Hospital and remained there for four days. Thereafter, he was transferred to Long Island Recovery Center, a substance abuse detoxification program, for 10 days and was discharged on May 25, 2007. Since his release, the respondent claimed, he had remained clean and his drug dependence was behind him. Since May 2007, the respondent voluntarily enrolled in the Court Intervention Services program in Nassau County, and attended Narcotics Anonymous two or three times per week. In addition, he sees a therapist weekly, and a psychiatrist every six weeks.

The respondent further advised the Grievance Committee that he had retained an accountant to reconcile his books.

The respondent made an investigative appearance before the Grievance Committee on December 15, 2008. With respect to the dishonored checks, the respondent readily admitted that his escrow account fell below the required balance and that he failed to safeguard his clients' funds. He further admitted that he commingled personal funds with escrow funds when he deposited personal funds into his escrow account to make up any deficit and to pay Ms. Howard and other clients, and that he failed to maintain the required bookkeeping records for his attorney escrow account. Bank records produced by the respondent showed that he made cash withdrawals from his attorney escrow account.

With respect to the money judgment, the respondent testified that he represented Marie Occhigrossi and Frank Occhigrossi at a closing on September 15, 2003. He was entrusted with the proceeds of the sale in the amount of $901,101.52, which he deposited into his escrow account. He disbursed $25,000 to the Occhigrossis on December 3, 2003, and $811,000 on August 4, 2004. According to the respondent, Ms. Occhigrossi agreed to lend him money from the remaining funds, so he withdrew $60,000 from his attorney escrow account in two checks. Admittedly, he had not discussed the "loan" with Mr. Occhigrossi. The respondent failed to repay the loan and the Occigrossis sued him. To resolve the matter, the respondent signed a confession of judgment in the amount of $120,000. The money judgment remains unsatisfied.

Annexed to the Grievance Committee's motion papers is a petition dated December 28, 2009, containing seven charges of professional misconduct against the respondent involving allegations that he converted escrow funds, failed to satisfy a money judgment entered against him, commingled personal funds with escrow funds, made cash withdrawals from his attorney escrow account, and failed to maintain required bookkeeping records for his attorney escrow account, in violation of DR 9-102(A)(E) and (J) and DR 1-102(A)(7).

In opposition, the respondent disputes the contention that he constitutes an immediate threat to the public inasmuch as his mistakes were not intentionally made and were made during a period of time when he was suffering from an addiction to prescription drug medication, depression and anxiety, and physical and emotional pain. His errors, while admittedly significant, were committed while he was "operating under a haze." He contends that he has since recovered from his various disabilities and is now functioning well. He points out that no clients suffered any harm, with the exception of the Occhigrossis. He regrets his actions and has fully cooperated with the Grievance Committee's investigation.

Based on 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)(ii) and (iii), pending further order of this court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him, and the matter is referred to a Special Referee to hear and report.

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

ENTER:

James Edward Pelzer

Clerk of the Court