Appellate Division: Second Judicial Department

M107284

E/ct

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

HOWARD MILLER, JJ.

2010-04913 In the Matter of Mitchell S. Sternbach, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Mitchell S. Sternbach, respondent. (Attorney Registration No. 2098366)

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), 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; (2) authorizing it to institute and prosecute a disciplinary proceeding based upon the allegations set forth in a petition dated May 10, 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 February 4, 1987.

Upon the papers submitted in support of the motion and no papers having been submitted 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), the respondent, Mitchell S. Sternbach, 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, Mitchell S. Sternbach, 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, Mitchell S. Sternbach, 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 Mitchell S. Sternbach, based on the petition dated May 10, 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, Mitchell S. Sternbach, 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 Lewis L. Douglass, a retired Justice of the Supreme Court, Kings County, 166-25 Powells Cove Boulevard, Whitestone, N.Y. 11357, 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, Mitchell S. Sternbach, 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 with regard to its investigation of several pending complaints.

Complaint of James Valletutti

The Grievance Committee received a complaint dated September 23, 2009, from James Valletutti, alleging that the respondent had failed to communicate with Mr. Valletutti's mother, Lola Valletutti, regarding a collections matter for which the respondent had been retained in or about 2007.

By letter dated September 28, 2009, sent by regular mail to the respondent's address listed with the Office of Court Administration (hereinafter OCA), the respondent was notified of the complaint and instructed to submit a written answer within 10 days of receipt of the letter. He was advised that failure to submit a response constituted professional misconduct independent of the merits of the underlying complaint. No response was received. By letter dated October 26, 2009, sent by certified mail/return receipt requested, the respondent was advised that no response had been received. He was instructed to submit an answer within 10 days of receipt of the letter. Postal records reflect a delivery date of October 28, 2009. No response was received. By letter dated November 24, 2009, sent by certified mail/return receipt requested, the respondent was advised that no response had been received. He was instructed to submit an answer within 5 days of receipt of the letter. No response was received.

Complaint of Michael Hamroff

The Grievance Committee received a complaint dated November 17, 2009, from Michael Hamroff, alleging that the respondent failed to communicate with Mr. Hamroff's company regarding a legal matter for which the respondent had been retained in May 2007. The complaint also alleged that the respondent mislead the complainant as to the status of an action which unbeknownst to the client had been dismissed by the court due to the respondent's failure to respond to a motion. This resulted in a judgment being entered against the client.

By letter dated December 2, 2009, sent by regular mail to the respondent's address listed with OCA, the respondent was notified of the complaint and instructed to submit a written answer within 10 days of receipt of the letter. He was advised that failure to submit a response constituted professional misconduct independent of the merits of the underlying complaint. No response was received. By letter dated December 31, 2009, sent by certified mail/return receipt requested, the respondent was advised that no response had been received. He was instructed to submit an answer within 10 days of receipt of the letter. Postal records reflect that the letter was delivered. No response was received. By letter dated January 22, 2010, sent by certified mail/return receipt requested, the respondent was advised that no response had been received. He was instructed to submit an answer within 5 days of receipt of the letter. No response was received.

Complaint of Theresa Casazza

The Grievance Committee received a complaint dated November 18, 2009, from Theresa Casazza, alleging that the respondent failed to communicate with Ms. Casazza regarding a legal matter for which the respondent had been retained in 2006. Additionally, the complaint alleged that the respondent failed to respond to requests from her new attorney for the legal file.

By letter dated January 6, 2010, sent by regular mail to the respondent's address listed with OCA, the respondent was notified of the complaint and instructed to submit a written answer within 10 days of receipt of the letter. He was advised that failure to submit a response constituted professional misconduct independent of the merits of the underlying complaint. No response was received. By letter dated January 26, 2010, sent certified mail/return receipt requested, the respondent was advised that no response had been received. He was instructed to submit an answer within 10 days of receipt of the letter. Postal records reflect that the letter was delivered. No response was received.

A judicial subpoena and a judicial subpoena duces tecum were personally served upon the respondent on February 16, 2010, directing him to: (1) produce on February 22, 2010, at the Grievance Committee's offices, his legal files concerning his representation of James Valletutti, Michael Hamroff's company, and Theresa Casazza; (2) appear at the Grievance Committee's offices for examination under oath on February 24, 2010; and (3) give testimony with regard to the aforementioned three complaints.

The respondent failed to deliver the requested legal files on February 22, 2010. On February 23, 2010, the respondent telephoned staff counsel to request an adjournment of his February 24, 2010, appearance in order to obtain counsel. It was agreed that the respondent would contact the Grievance Committee by February 26, 2010 to arrange for a new date. No contact was ever made on behalf of the respondent, and the respondent did not contact the Grievance Committee to reschedule his examination under oath. By letter dated March 8, 2010, sent via certified mail/return receipt requested, the respondent was advised that no contact by any attorney was made on his behalf. The respondent was advised that he was still subject to the previously issued subpoenas and his examination under oath would take place at the Grievance Committee 's offices on March 17, 2010. The respondent failed to appear on March 17, 2010.

Although personally served with a copy of the Grievance Committee's motion, to date, the respondent has not submitted a response or requested an extension of time in which to submit a response.

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), 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