Appellate Division: Second Judicial Department

M105946

E/ct

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

JOHN M. LEVENTHAL, JJ.

2010-02792 In the Matter of Stuart N. Kingoff, admitted as Stuart Neal Kingoff, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Stuart N. Kingoff, respondent. (Attorney Registration No. 2269298)

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, pursuant to 22 NYCRR 691.4(l)(1)(i),(ii), and (iii), 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 lawful requests with regard to several pending matters, made substantial admissions under oath 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 April 8, 2010; (3) directing the respondent to submit an answer to 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 May 31, 1989, under the name Stuart Neal Kingoff.

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)(i),(ii), and (iii), the respondent, Stuart N. Kingoff, admitted as Stuart Neal Kingoff, 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, Stuart N. Kingoff, admitted as Stuart Neal Kingoff, 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 Stuart N. Kingoff, admitted as Stuart Neal Kingoff, based on the petition dated April 8, 2010; and it is further,

ORDERED that Gary L. Casella, Chief Counsel, Grievance Committee for the Ninth Judicial District, Crosswest Office Center, 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 the Grievance Committee for the Ninth Judicial District 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 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 Marc S. Oxman, Esq., Oxman, Tulis, Kirkpatrick, Whatt & Geiger, LLP, 120 Bloomingdale Road, White Plains, N.Y. 10605, 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, Stuart N. Kingoff, admitted as Stuart Neal Kingoff, 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 the Grievance Committee's investigation, substantial admissions under oath that he has committed acts of professional misconduct, and other uncontroverted evidence of professional misconduct.

Charges Relating to Gerson Neuman

The respondent was retained in December 2007 to prosecute an action on behalf of Gerson Neuman, inter alia, to set aside an allegedly fraudulent real estate conveyance and related mortgages. He received a $7,500 retainer agreement and commenced an action in Supreme Court, Rockland County. In or about March 2008, the respondent was advised that his employment was being terminated, and he was asked, inter alia, to deliver his client's file to successor counsel, Joel Scheinert, Esq., and to refund the unearned portion of the retainer fee. The respondent had allegedly acknowledged owing Mr. Neuman a refund of $6,200.

On or about April 14, 2008, the Grievance Committee received a complaint from Joel Scheinert, Esq., successor counsel, alleging that the respondent failed to deliver the file and failed to refund the unearned retainer fee. On or about April 22, 2008, the Grievance Committee sent the respondent, via first class mail, a copy of the complaint and directed him to submit a written answer within 10 days. The respondent failed to do so. On May 15, 2008, a second copy of the complaint was sent, via certified mail, return receipt requested. The mailing was returned as "unclaimed" on or about June 19, 2008. In June 2008, the Grievance Committee prepared and received subpoenas to be served on the respondent. As efforts were being made to serve the subpoenas, the respondent contacted the Grievance Committee and agreed to submit an answer.

In a confirmatory letter, the respondent was asked to address the allegation that he failed to refund unearned fees, and indicate whether he claimed that the entire retainer had been earned. The respondent submitted an answer dated July 21, 2008, but did not address the specific questions posed. Rather, he suggested that his former client should look to others for a refund. By letter dated July 31, 2008, the Grievance Committee again asked the respondent, inter alia, to address the issue of whether he had earned the entire retainer, and to provide specified billing and banking records. In a responsive letter dated August 12, 2008, the respondent failed to address the inquiries raised, and failed to supply the requested records.

Complaint of Linda Burdick

The respondent represented Linda Burdick in a landlord/tenant matter. On or about May 12, 2008, the Grievance Committee received a complaint from Ms. Burdick, alleging, inter alia, that the respondent provided objectionable representation. On or about May 27, 2008, a copy of Ms. Burdick's complaint was sent to the respondent, via first class mail. He was instructed to file a written answer within 10 days after receipt of the letter. The respondent failed to submit an answer. On or about June 9, 2008, a second copy of the complaint was sent to the respondent, via certified mail, return receipt requested, at his home/office address. According to postal records, several attempts to deliver were made. On or about July 7, 2008, the mailing was returned "unclaimed." Only under threat of subpoena did the respondent submit an answer to the complaint.

Attorney Re-Registration

The respondent was due to re-register with the Office of Court Administration (hereinafter OCA) by January 2008. The respondent did not re-register for the 2007-2008 biennial period until December 11, 2009. He is currently delinquent for the 2009-2010 biennial period.

For the 2005-2006 biennial period, the respondent did not pay any registration fee. He identified himself as a member of the New York Guard and requested that OCA extend his time for payment. Pursuant to Military Law §308-b, "military personnel serving on active duty" are eligible for a grace period which stays professional license renewing deadlines for the period of "active duty" and for up to 12 months after release from "active duty." The respondent has admitted that he was not entitled to an extension.

Dishonored Checks

In a span of approximately six weeks, the Grievance Committee received four reports from the Lawyers' Fund for Client Protection that a total of 14 checks or electronic debits from the respondent's IOLA account were dishonored for insufficient funds. On January 26, 2009, the Grievance Committee was advised of seven dishonored checks totaling approximately $1000. By letter dated January 29, 2009, the respondent was sent a complaint, via first class mail, and instructed to submit a written answer within 20 days. He failed to respond. On February 2, 2009, the Grievance Committee was advised of five dishonored checks totaling $977.05. By letter dated February 4, 2009, the respondent was sent a second complaint, via first class mail, and instructed to submit a written answer within 20 days. He failed to do so. On March 3, 2009, the Grievance Committee received notice of another dishonored check in the sum of $127.35. On or about March 6, 2009, the respondent was sent a third complaint, via certified mail, along with second mailings of the first and second complaints. He was instructed to submit written answers in 20 days. According to postal records, the mailing was received on March 11, 2009. On or about March 12, 2009, the Grievance Committee received notice of another dishonored check in the sum of $114.75. By letter dated March 13, 2009, a fourth complaint was sent to the respondent, via first class mail, instructing him to submit a written answer within 20 days.

With respect to all four complaints, the respondent was instructed to explain in his answer why his checks were dishonored, and to include copies of specified bookkeeping records. The respondent forwarded an answer by letter dated March 15, 2009. By letter dated April 1, 2009, the Grievance Committee notified the respondent that his answer was insufficient and asked that he supply the requested records. Contemporaneously, bank records were subpoenaed from JP Morgan Chase Bank. On or about April 24, 2009, the respondent delivered bank statements, which revealed that his IOLA account was opened on December 16, 2008, with an initial deposit of $25. Accompanying records provided by the respondent indicated that the payees included Verizon, Orange & Rockland Utilities, Judaica Bookstore, a pharmacy, a local market, and the respondent's daughter's school. The respondent did not provide copies of the dishonored checks. Copies of six dishonored checks were obtained by the Grievance Committee pursuant to subpoena. The respondent's signature appears on each of the six checks he claimed his wife unintentionally issued. Each of the six checks, drawn on the respondent 's IOLA account, were for personal expenses. Two of six dishonored checks were payable to cash.

Notwithstanding the fact that the respondent made a single deposit of $25 into his IOLA account, he issued six checks totaling $450.16, and made at least three electronic debit payments totaling $819.22, not counting re-presentations.

In opposition to the motion, the respondent takes the position with respect to the issue of unearned fees that he was retained, he did the job, and he is entitled to the funds given to him. He claims that he was discharged by his client because he would not engage in illegal activities. With regard to turning over his client's file to successor counsel, he allegedly could not do so until he first spoke to law enforcement authorities. As for his IOLA account, he notes that no client funds were ever deposited into the account and checks were "inadvertently" issued not to clients, but storekeepers. While stating that his registration fees "hopefully will be paid this week," he, nonetheless, claims that he is not in default.

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)(i),(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 LEVENTHAL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court