Appellate Division: Second Judicial Department

M109472

E/ct

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON, JJ.

2010-05595 In the Matter of Eric A. Stewart, admitted as Eric Alan Stewart, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Eric A. Stewart, respondent. (Attorney Registration No. 4296653)

DECISION & ORDER ON MOTION

Motion by the petitioner for an order: (1) suspending the respondent, 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 in that he has failed to submit a written answer to complaints of professional misconduct duly served upon him and has failed to comply with lawful demands of the Grievance Committee for the Ninth Judicial District in connection with its investigation of a complaint of professional misconduct and based upon uncontroverted evidence of professional misconduct; (2) authorizing the institution of a disciplinary proceeding against the respondent based on a petition dated June 7, 2010; (3) directing that a hearing be held before a Special Referee; and (4) directing the respondent to answer the petition annexed to its order to show cause within 20 days. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Third Judicial Department on January 26, 2005, under the name Eric Alan Stewart.

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) and (iii), the respondent, Eric A. Stewart, admitted as Eric Alan Stewart, 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, Eric A. Stewart, admitted as Eric Alan Stewart, 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, Eric A. Stewart, admitted as Eric Alan Stewart, 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 Eric A. Stewart, admitted as Eric Alan Stewart, based on the petition dated June 7, 2010; and it is further,

ORDERED that the Grievance Committee 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 Gary L. Casella, Chief Counsel, Grievance Committee for the Ninth Judicial District, 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 within 20 days after service upon him of a copy of this order, the respondent, Eric A. Stewart, admitted as Eric Alan Stewart, 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 Norman B. Lichtenstein, Esq., 4 Roland Drive, White Plains, N.Y. 10605, together with his finding 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, Eric A. Stewart, admitted as Eric Alan Stewart, 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 investigation by the Grievance Committee for the Ninth Judicial District and upon uncontroverted evidence of professional misconduct. The Grievance Committee specifically alleges that the respondent failed to comply with subpoenas issued by the Clerk of this Court which required him to appear for an examination under oath and to produce information germane to the investigation.

Complainant John J. Morabito and his sister, Jacqueline Porter, engaged the respondent's services in their capacities as co-executors of their mother's estate. They sent the respondent a copy of the death certificate and contact information for nine beneficiaries and signed a letter of engagement with a check for $625 on or about March 30, 2009. The respondent advised them that a petition for probate would be sent shortly.

Mr. Morabito e-mailed the respondent on April 17, 2009, to inquire about the status of the matter. The respondent advised that he had a medical emergency and promised to send a draft of the petition shortly. Mr. Morabito received the respondent's draft on April 23, 2009, and advised of errors which required correction. Mr. Morabito and his sister eventually signed a corrected version of the petition and returned it to the respondent via overnight delivery service. The respondent advised them that he had filed their probate petition with the Surrogate's Court on May 3, 2009, and would advise them regarding the "next steps." The respondent failed to answer any of the voice messages or e-mails left by Ms. Porter. The respondent finally called Ms. Porter in response to a message left for him by the family attorney and explained that his phone had been out of order. He gave her a quick status report and promised to be in touch as soon as he heard something from the Surrogate's Court. Consent letters were sent to the Estate beneficiaries and returned to the respondent 's office between June and July 2009. The respondent advised that the consents were filed with the court on July 21, 2009.

Further attempts at communication by Ms. Porter were unsuccessful. On September 30, 2009, Mr. Morabito once again requested the aid of the family attorney, who was told by the respondent that the consents had been filed three weeks earlier. The respondent had previously represented that the consents were filed on July 21, 2009. Mr. Morabito discharged the respondent and directed him to forward the file to the family attorney, Mr. Barraco, immediately. The file turned over to Mr. Barraco was virtually empty except for the $625 money order advanced for filing fees. Mr. Barraco reviewed the Surrogate's Court file and discovered that the petition had been returned to the respondent approximately three weeks after filing with a list of corrections to be made. Consent letters from the Estate beneficiaries were never filed with the court. The respondent provided copies of four of the nine consent letters with no explanation of what happened to the originals. The respondent had never informed Mr. Morabito or his sister that the original paperwork had been rejected by the Surrogate 's Court. Mr. Barraco essentially had to start the whole process from the beginning.

While investigating the Morabito complaint, the Grievance Committee discovered that the respondent had failed to update his registration with this Office of Court Administration (hereinafter OCA) and to pay the required fees since January 2005. The Grievance Committee initiated a sua sponte complaint asking the respondent to address his failure to re-register for the biennial registration periods 2007-2008 and 2009-2010. The remaining two charges of the petition emanate from the respondent's failure to re-register.

According to the Grievance Committee, the respondent's failure to comply with registration obligations impeded its investigation of the Morabito complaint. A copy of that complaint was initially mailed to the firm at which the respondent was employed at the time of his original registration in 2005 and which was listed as the respondent's official business address in the OCA registration database. The unopened envelope addressed to the respondent with the enclosed complaint was returned to the Grievance Committee's office by the law firm with a handwritten note indicating that the respondent had not been employed there since 2007. The Grievance Committee subsequently determined that the respondent was conducting his law practice out of a personal residence in Fort Montgomery, New York and sent copies of the Morabito complaint to that address via first class and certified mail. The return receipt card indicated delivery on December 24, 2009. The first class letter was presumably delivered inasmuch as it was not returned to the Grievance Committee 's office. The respondent nevertheless failed to submit a timely written answer or to request additional time in which to do so. The Grievance Committee conducted a further investigation in an effort to ensure that the respondent received actual notice and was afforded every reasonable opportunity to defend himself. The Grievance Committee learned that the respondent was elected to a four year term as Town Justice of Highland Falls on November 3, 2009, and started serving his term on January 1, 2010.

Notwithstanding efforts by the Grievance Committee to communicate with the respondent via messages left on his cell phone and with the clerk of the Town of Highland Falls Justice Court, the respondent failed to answer. At the Grievance Committee's request, the Clerk of this Court issued subpoenas requiring the respondent to appear for an examination under oath on April 27, 2010, and to produce files relating to the Morabito Estate. Despite personal service of those subpoenas, the respondent failed to appear as scheduled. The Grievance Committee has not received any communication from the respondent subsequent to the appearance date and his default was noted on the record.

The Grievance Committee submits that the respondent's failure to submit written answers to the complaints and his total lack of cooperation with the Grievance Committee's investigation was deliberate and contumacious. He was afforded every reasonable opportunity to submit answers and to appear but ignored those opportunities. The respondent neglected his ethical responsibilities as a lawyer and compounded his neglect by affirmatively making misrepresentations about the status of the underlying probate proceedings to the co-executors.

Although the respondent admitted service of the Grievance Committee's order to show cause on June 23, 2010, he failed to interpose an answer.

Accordingly, the Grievance Committee's motion is granted, the respondent is found to constitute an immediate threat to the public, he is suspended pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii) and the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him based on the petition dated June 7, 2010.

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

ENTER:

Matthew G. Kiernan

Clerk of the Court