Appellate Division: Second Judicial Department

M106183

E/ct

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

L. PRISCILLA HALL, JJ.

2010-03352 In the Matter of George J. Faeth, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; George J. Faeth, respondent. (Attorney Registration No. 2053445)

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) 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 lawful demands of the Grievance Committee in its investigation and/or 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 March 11, 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 7, 1986.

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

ORDERED that the motion is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), the respondent, George J. Faeth, 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, George J. Faeth, 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, George J. Faeth, 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 George J. Faeth, based on the petition dated March 11, 2010; and it is further,

ORDERED that the Grievance Committee for the Tenth 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 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, George J. Faeth, 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 Kenneth A. Davis, a retired Justice of the Supreme Court, Nassau County, 19 Harriet Drive, Syosset, N.Y. 11791, 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, George J. Faeth, 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 lawful demands of the Grievance Committee for the Tenth Judicial District in its investigation and other uncontroverted evidence of professional misconduct.

Plaza 230 Complaint

On or about April 30, 2008, the Grievance Committee received a complaint forwarded to it by the Nassau County District Attorney's Office, alleging that the respondent failed to advise his clients, Plaza 230, a professional condominium of over 56 members, that he had received a tax certiorari refund on their behalf in the amount of $228,645.88, deposited the funds in his escrow account, failed to timely remit the funds to his clients, and failed to disclose his receipt of a fee in the amount of $40,308.63. By letter dated May 30, 2008, sent via first class mail, the respondent was forwarded a copy of the complaint and directed to submit a written response within 10 days of receipt of the letter. He failed to do so.

By letter dated May 9, 2008, Plaza 230 sent the Grievance Committee correspondence detailing other instances of neglect of matters in which the respondent had been retained to handle on behalf of Plaza 230, in addition to the funds not remitted. By letter dated June 13, 2008, the respondent was provided a copy of this additional correspondence and directed to submit response within 10 days of receipt of the letter. He failed to do so. By letter dated August 20, 2008, sent via certified mail, the respondent was re-sent the previous mailings, and was directed to submit a written response within 10 days of receipt of the Grievance Committee's letter. Postal records reflect delivery on September 8, 2008. The respondent failed to submit a written answer. By letter dated November 25, 2008, sent via certified mail, the respondent was re-sent the letters dated May 30, 2008, and August 20, 2008, and directed to submit a written answer within 5 days of receipt of the letter. The Grievance Committee's letter was returned unclaimed.

By letter dated December 2, 2008, sent via certified mail, a December 1, 2008, telephone conversation was memorialized wherein the respondent agreed, inter alia, to submit a written response to the Plaza 230 complaint together with documentation of his illness and recovery, by January 12, 2009. Postal records reflect delivery of the letter on December 29, 2008. Although granted three separate adjournments, the last adjournment requiring his written answer by March 16, 2009, the respondent failed to submit a written response.

By letter dated March 27, 2009, sent via certified mail, the respondent was provided copies of previous mailings and directed to appear on April 20, 2009 to give testimony. The respondent failed to appear and failed to submit a written answer to the Plaza 230 complaint. On July 8, 2009, the respondent was personally served with a letter dated July 6, 2009 and copies of prior correspondence, and directed to submit a written response to the complaint and provide medical documentation of his illness within 5 days. He was granted an extension until July 24, 2009. By letter dated July 23, 2009, the respondent provided the Grievance Committee medical documentation, but did not answer the Plaza 230 complaint.

By letter dated August 7, 2009, sent via first class mail, a telephone conversation was memorialized wherein the respondent was granted until August 14, 2009 to submit an answer and informed that he was required to appear on August 19, 2009, at 2:00 P.M., to give testimony in the event his answer was not submitted. The respondent did not submit an answer. On August 19, 2009, the respondent sent a letter via fax which was received by the Grievance Committee at or around 12:29 P.M., indicating that he was ill, unable to travel and appear. He also indicated that he hoped to have the requested information by August 25, 2009, as he was almost finished with formulating his response and just needed to go into his office to make photocopies. By letter dated August 24, 2009, sent via overnight mail, a telephone conversation was memorialized wherein the respondent was directed to submit a written answer addressing the Plaza 230 complaint by August 26, 2009 and to submit a doctor's note confirming that he was unable to appear on August 19, 2009. He was also directed to appear for examination on August 28, 2009. The respondent submitted a doctor 's note, but failed to submit a written answer to the complaint.

The respondent appeared at the Grievance Committee's offices on August 28, 2009, but indicated that he was not well enough to testify. He agreed to return on September 16, 2009, and to submit an answer by September 11, 2009. He also agreed to submit a doctor's note indicating that he was unable to testify on August 28, 2009.

The respondent submitted a doctor's note, but failed to submit a written answer to the complaint.

On September 16, 2009, the respondent appeared, but due to time constraints he was not able to be examined about the Plaza 230 complaint and his appearance was adjourned until September 29, 2009, at 10:00 A.M. He agreed to bring his client files, and agreed to submit a written answer by September 28, 2009. The respondent failed to submit an answer by September 28, 2009. On September 29, 2009, at approximately 9:30 A.M., the respondent called to request an adjournment due to illness.By letter dated September 29, 2009, sent via first class mail, a telephone conversation was memorialized wherein the respondent was advised to submit an answer and a doctor's note by October 13, 2009. To date, the respondent has failed to submit a written answer or the requested documentation.

Complaint of Clara Velasquez

The Grievance Committee received a complaint from Clara Velasquez dated April 21, 2008, alleging that the respondent neglected a matrimonial matter entrusted to him.

By letter dated May 9, 2008, sent via first class mail, the respondent was provided a copy of the Velasquez complaint and directed to submit a written answer within 10 days of receipt of the letter. He failed to do so. By letter dated June 3, 2008, sent via certified mail, the respondent was provided with another copy of the May 9, 2008 letter and directed to submit a written answer within 10 days of receipt of the letter. Postal records reflect delivery on June 8, 2009. The respondent failed to respond. By letter dated June 26, 2008, sent via certified mail, the respondent was provided with a copy of the Grievance Committee's previous letter and directed to submit a written answer within 5 days of receipt of the letter. Postal records reflect delivery on July 21, 2008. The respondent failed to submit an answer.

Despite three subsequent mailings separately dated July 31, 2008, September 8, 2008, and October 6, 2008, all sent via certified mail and postal records indicating receipt by the respondent of those letters, he failed to submit an answer.

On November 17, 2008, a judicial subpoena was served on the respondent which directed him to appear to testify on December 2, 2008 and to bring with him relevant client files. By letter dated December 2, 2008, sent via certified mail, a December 1, 2008, telephone conversation was memorialized wherein the respondent agreed, inter alia, to submit a written response to the Velasquez complaint together with documentation of his illness and recovery, by January 12, 2009. Postal records reflect delivery of the letter on December 29, 2008. Although granted three separate adjournments, the last adjournment requiring his written answer by March 16, 2009, the respondent failed to submit a written response. By letter dated March 27, 2009, sent via certified mail, the respondent was provided copies of the subpoena and previous mailings, and directed to appear on April 20, 2009 to give testimony. He failed to appear and failed to submit a written answer to the Velasquez complaint. On July 8, 2009, the respondent was personally served with a letter dated July 6, 2009 and copies of prior correspondence, and directed to submit a written response to the complaint and provide medical documentation of his illness within 5 days. He was granted an extension until July 24, 2009. By letter dated July 23, 2009, the respondent provided the Grievance Committee with medical documentation, but did not submit an answer to the Velasquez complaint.

By letter dated August 7, 2009, sent via first class mail, a telephone conversation was memorialized wherein the respondent was granted an extension until August 14, 2009 to submit his answer, and informed that he was required to appear to give testimony on August 19, 2000, at 2:00 P.M., in the event his answer was not submitted. The respondent did not submit an answer. On August 19, 2009, the respondent sent a letter via fax which was received by the Grievance Committee at or around 12:29 P.M., indicating that he was ill, unable to travel and appear. He also indicated that he hoped to have the requested information by August 25, 2009, as he was almost finished with formulating his response and just needed to go into his office to make photocopies.

By letter dated August 24, 2009, sent via overnight mail, a telephone conversation was memorialized wherein the respondent was directed to submit a written answer addressing the Velasquez complaint by August 26, 2009 and to submit a doctor's note confirming that he was unable to appear on August 19, 2009. He was also directed to appear for examination on August 28, 2009. The respondent submitted a doctor's note, but failed to submit a written answer to the complaint. The respondent appeared at the Grievance Committee's offices on August 28, 2009, but indicated that he was not well enough to testify. He agreed to return on September 16, 2009, and to submit an answer by September 11, 2009. He also agreed to submit a doctor's note indicating that he was unable to testify on August 28, 2009. The respondent submitted a doctor's note, but failed to submit a written answer to the complaint.

On September 16, 2009, the respondent appeared, but did not bring with him his client files. He was examined about the Velasquez complaint for three hours and agreed to adjourn his appearance until September 29, 2009, at 10:00 A.M., for further examination. He agreed to bring his client files, and agreed to submit a written answer by September 28, 2009. The respondent failed to submit an answer by September 28, 2009. On September 29, 2009, at approximately 9:30 A.M., the respondent called to request an adjournment due to illness. By letter dated September 29, 2009, sent via first class mail, a telephone conversation was memorialized wherein the respondent was advised to submit an answer and a doctor's note by October 13, 2009. To date, the respondent has failed to submit a written answer to the Velasquez complaint.

Complaint of Peter Hirakis

By letter dated August 7, 2009, Peter Hirakis filed a complaint with the Grievance Committee, alleging that the respondent had neglected two litigation matters, causing the complainant to sustain losses and damages in excess of $500,000.

By letter dated September 3, 2009, via first class mail, the respondent was provided with a copy of the Hirakis complaint and was directed to submit a written response within 10 days of receipt of the letter. The respondent requested additional time to respond and agreed to submit a response by 5:00 P.M. on October 13, 2009. The Grievance Committee sent a confirmatory letter dated September 29, 2009.

To date, the respondent has not submitted a written answer to the Hirakis complaint.

Failure to Re-register

The Office of Court Administration (hereinafter OCA) records reflected that as of November 2008 the respondent failed to re-register for the 2008-2009 biennial registration period. On September 16, 2009, the respondent agreed to bring with him at his scheduled appearance before the Grievance Committee on September 29, 2009, a receipt indicating that he had re-registered. He did not appear on that date due to alleged illness. By letter dated September 29, 2009, sent via first class mail, he was directed to provide proof of re-registration by October 13, 2009.

By letter dated November 2, 2009, sent via first class mail, the respondent was advised that a sua sponte complaint had been initiated due to his failure to re-register, and was directed to submit proof of compliance as well as an answer explaining his failure to re-register within 10 days of receipt of the letter. The respondent failed to submit a written answer and failed to re-register. By letter dated November 20, 2009, the respondent was provided a copy of the prior mailing, and directed to submit a written answer, together with an explanation, within 10 days of receipt of the letter. To date, the respondent has failed to submit an answer and failed to re-register.

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) 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 HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court