Appellate Division: Second Judicial Department

M106594

E/ct

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

PETER B. SKELOS

MARK C. DILLON

FRED T. SANTUCCI, JJ.

2009-11141 In the Matter of Anthony C. Casamassima, admitted as Anthony Christopher Casamassima, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Anthony C. Casamassima, respondent. (Attorney Registration No. 2661858)

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 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 May 14, 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 March 1, 1995, under the name Anthony Christopher Casamassima.

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) and (iii), the respondent, Anthony C. Casamassima, admitted as Anthony Christopher Casamassima, 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, Anthony C. Casamassima, admitted as Anthony Christopher Casamassima, 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 Anthony C. Casamassima, admitted as Anthony Christopher Casamassima, based on the petition dated May 14, 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 Motorway 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, Anthony C. Casamassima, admitted as Anthony Christopher Casamassima, 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 John P. Clarke, Esq., 35 Broad St., Williston Park, N.Y. 11596, 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, Anthony C. Casamassima, admitted as Anthony Christopher Casamassima, 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 in its investigation and other uncontroverted evidence of professional misconduct.

Complaint of Ilene S. Pincus

The Grievance Committee received a complaint dated September 21, 2009, from Ilene S. Pincus, alleging that she had retained the respondent on or about November 2005 to represent her in a lawsuit against a drugstore, that the matter was settled in July 2009, and that she had not received her settlement money from the respondent. By letter dated October 7, 2009, sent via regular mail to the respondent's home/office address, the respondent was notified of the complaint and instructed to submit a written answer within 10 days of receipt of the letter. The letter was not returned. The respondent failed to submit an answer.

The Grievance Committee received supplemental correspondence from the complainant, advising that the lawsuit settled for $35,000; that she had received only three installments, via bank checks, totaling $8,500; and that she had not received the remainder. By letter dated October 20, 2009, sent via regular and certified/return receipt mail, the Grievance Committee provided the respondent with a copy of the supplemental correspondence and requested his written response within 10 days of receipt of the letter. The respondent was advised that failure to respond or otherwise cooperate with the Grievance Committee constituted professional misconduct independent of the merits of the underlying complaint. The respondent failed to submit an answer.

On October 30, 2009, the respondent was personally served with a so-ordered subpoena, directing him to appear at the offices of the Grievance Committee on November 13, 2009, in connection with this and other pending matters. The respondent was also served with a subpoena duces tecum, requiring him to produce various documents, including his file, copies of bank statements, ledger entries, deposit slips, checkbook ledger reflecting the deposit of the settlement funds, and any checks reflecting disbursement of the settlement funds. The Grievance Committee agreed to adjourn the examination date to December 2, 2009, on the condition that the respondent submit his outstanding answer and the requested documentation by November 27, 2009. The adjournment was memorialized by letter dated November 12, 2009, which was sent regular mail to the respondent. The respondent failed to produce the requested documentation by November 27, 2009.

On December 2, 2009, the respondent appeared, but did not testify. He requested an adjournment to retain counsel. An adjourned date of December 21, 2009, was agreed to and confirmed by letter, sent via regular mail. The letter was not returned. The respondent failed to appear on December 21, 2009, and failed to provide his outstanding answer to the complaint, his file and required bookkeeping records.

To date, the respondent has failed to submit written answers to the complaint, and produce his files and the required bookkeeping records.

The Grievance Committee subpoenaed the bank records of the respondent with regard to his account entitled, "Anthony C. Casamassima Esq., Escrow a/c IOLA", maintained at New York Community Bank. Bank records reflect that on or about August 19, 2009, the respondent deposited a check in the amount of $35,000, representing the settlement proceeds, into his escrow account, which brought the balance to $35,173.09. Beginning on August 20, 2009, the respondent began making a series of cash withdrawals from the escrow account, including cash withdrawals corresponding to three bank checks remitted to the complainant, totaling $8,500. Bank records reflect that on September 30, 2009, the balance in the respondent's escrow account fell to $4,240.90, and on October 30, 2009, the balance fell to $96.42. The respondent failed to remit any other portion of the settlement to the complainant.

Complaint of Barry Liebman, Esq.

The Grievance Committee received a complaint dated September 2, 2009, from Barry Liebman, Esq., on behalf of the Law Offices of Kenneth A. Wilhelm. The complainant law firm alleged that the respondent failed to honor a court-ordered lien on settlement funds. By letter dated September 10, 2009, sent via regular mail to the respondent's home/office address, he was notified of the complaint and instructed to submit a written response within 10 days of receipt of the letter. The letter was not returned. He failed to submit an answer. By letter dated October 5, 2009, sent via certified/return receipt mail, the Grievance Committee requested the respondent to submit a written response to the complaint within 10 days of receipt of the letter. The respondent was advised that failure to respond or otherwise cooperate with the Committee constitutes professional misconduct independent of the merits of the underlying complaint. The Grievance Committee's letter was returned "unclaimed." By letter dated October 15, 2009, sent via certified/return receipt mail, the Grievance Committee requested the respondent to submit a written response to the complaint within 10 days of receipt of the letter. The letter was not returned. The respondent failed to submit an answer.

On October 30, 2009, the respondent was personally served with a so-ordered subpoena, directing him to appear at the offices of the Grievance Committee on November 13, 2009, in connection with this and other pending matters. The respondent was also served with a subpoena duces tecum, requiring him to produce various documents, including his file, copies of bank statements, ledger entries, deposit slips and checkbooks reflecting the deposit of legal fees in the amount of $26,620. The Grievance Committee agreed to adjourn the examination date to December 2, 2009, on the condition that the respondent submit his outstanding answer and the requested documentation by November 27, 2009. The adjournment was memorialized by letter dated November 12, 2009, which was sent regular mail to the respondent. The respondent failed to produce the requested documentation by November 27, 2009.

On December 2, 2009, the respondent appeared, but did not testify. He requested an adjournment to retain counsel. An adjourned date of December 21, 2009, was agreed to and confirmed by letter, sent via regular mail. The letter was not returned. The respondent failed to appear on December 21, 2009, and failed to provide his outstanding answer to the complaint, his file, and required bookkeeping records.

To date, the respondent has failed to submit a written answer to the complaint, and produce his files and required bookkeeping records.

Sua Sponte Complaint

By letter dated November 18, 2009, sent via regular mail, the Grievance Committee notified the respondent that a sua sponte complaint and investigation had been commenced against him based on his failure to re-register as an attorney with the Office of Court Administration (hereinafter OCA) and advised him to immediately re-register. OCA records reflect that the respondent failed to re-register for the 2007-2008 and 2009-2010 biennial periods. It was requested that the respondent submit proof of compliance, and submit an answer explaining his failure to re-register, within 10 days of receipt of the letter. The respondent failed to re-register and failed to submit an answer.

On December 2, 2009, the respondent appeared at the Grievance Committee's offices in connection with other pending matters. He advised at that appearance that he would be receiving funds within a couple of weeks and would then take care of his delinquent registration. The Grievance Committee confirmed by letter dated December 2, 2009, sent via regular mail, that the respondent would be resolving the registration matter shortly. The letter was not returned. By letter dated December 10, 2009, the respondent submitted a written answer, but failed to re-register.

To date, OCA records reflect that the respondent is delinquent for the 2007-2008 and 2009-2010 biennial registration periods.

Additional allegations of professional misconduct are set forth in the petition dated May 14, 2010.

In opposition to that branch of the motion seeking his interim suspension, the respondent claims that he "wanted to cooperate", but lacked the funds to retain counsel and failed to realize the significance of his failure to answer. He attributes his situation to his "poor financial condition."

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, SKELOS, DILLON and SANTUCCI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court