Appellate Division: Second Judicial Department

M110375

E/ct

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

PLUMMER E. LOTT, JJ.

2010-07522 In the Matter of Richard F. Gluszak, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Richard F. Gluszak, repondent. (Attorney Registration No. 1294388)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District for an order: (1) suspending the respondent, 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 Grievance Committee's investigation of four complaints; (2) authorizing it to institute and prosecute a disciplinary proceeding against the respondent based on allegations of professional misconduct as set forth in a verified petition dated July 22, 2010; and (3) directing that a hearing be held before a Special Referee. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on November 15, 1978.

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, Richard F. Gluszak, 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, Richard F. Gluszak, 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, Richard F. Gluszak, 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 Richard F. Gluszak, based on the petition dated July 22, 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 Robert A. Green, 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, Richard F. Gluszak, 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 Geoffrey J. O'Connell, a retired Justice of the Supreme Court, Tenth Judicial District, 617 DuBois Avenue, Valley Stream, N.Y. 11581, as Special Referee to hear and report, 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, Richard F. Gluszak, 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 for the Tenth Judicial District.

The basis for the interim suspension is the respondent's obstruction of the legitimate function of the Grievance Committee in its investigation of four complaints filed against him by his deliberate failure to respond despite numerous letters and subpoenas served upon him.

The Grievance Committee received a complaint from the Honorable Ira Warshawsky of the Supreme Court, Nassau County involving a default judgment taken against the respondent based upon his failure to answer a summons and complaint in the matter entitled Quarta v Gluszak, commenced in the Supreme Court, Nassau County, under Index No. 4427/08. The action alleged that the respondent diverted money from a client via a business credit link and that he failed to produce certain documents as mandated by a order of the Supreme Court, Nassau County, dated June 11, 2008. The complaint was based on a order of the Supreme Court, Nassau County, dated April 9, 2009, which found that the plaintiffs were entitled to judgment on their causes of action for professional malpractice and diversion of funds.

By letter dated April 23, 2009, sent to the address the respondent had listed with the Office of Court Administration (hereinafter OCA), the Grievance Committee notified the respondent that he was the subject of a sua sponte complaint based on the order dated April 9, 2009, and requested his answer within 10 days. No response was received. On May 4, 2009, Chris McDonough, Esq., apprised the Grievance Committee that he had been retained to represent the respondent and requested a two week adjournment. By facsimile dated May 18, 2009, counsel apprised the Grievance Committee that the respondent was just getting over the flu and was in the process of providing counsel with documents from the underlying civil matter. The respondent's counsel represented that he would submit a response as soon as possible. He sent an "initial response" to the Grievance Committee on June 1, 2009.

By letter dated September 15, 2009, the Grievance Committee requested additional information to be provided within 15 days. No response was received. By letter dated October 20, 2009, sent to the respondent's counsel by certified mail, the Grievance Committee advised that the respondent's failure to cooperate constitutes professional misconduct independent of the merits and requested the respondent's answer, along with an explanation of his failure to cooperate, within 10 days. By letter dated November 3, 2009, the respondent's counsel submitted a response, which did not fully reply to the Grievance Committee's request for information. By letter dated December 4, 2009, the Grievance Committee requested further specific information within 10 days. By letter dated December 14, 2009, the respondent's counsel advised that he was unable to locate his client but would keep the Grievance Committee advised. By letter dated February 1, 2010, the Grievance Committee advised the respondent's counsel that a subpoena would ensue unless the respondent submitted the requested information within 10 days.

The Grievance Committee received a complaint from Richard Ferris, dated May 27, 2009, alleging that the respondent claimed to be unable to return proceeds from a house sale he had deposited into his IOLA account. By letter dated June 19, 2009, sent to the address the respondent had listed with OCA, the Grievance Committee requested a copy of the respondent's answer within 10 days and advised that an unexcused failure to reply constituted professional misconduct independent of the merits. By letter dated June 29, 2009, Chris McDonough apprised the Grievance Committee that he had been retained to represent the respondent in that matter and requested additional time in which to respond. The respondent's counsel sent a response on July 13, 2009 but the Grievance Committee requested additional information, within 15 days, by letter dated September 15, 2009. By letter dated October 20, 2009, sent to the respondent's counsel by certified mail, the Grievance Committee stated that the respondent's failure to reply constituted professional misconduct independent of the merits, and requested a response within 10 days. By letter dated November 3, 2009, the respondent 's counsel advised the Grievance Committee that the respondent had undergone treatment for a bad back, would probably require surgery and would respond within one week. The Grievance Committee thereafter sent the respondent's counsel a letter dated February 1, 2010 advising that a subpoena would ensue unless the outstanding items were provided within 10 days.

The Grievance Committee received a complaint, dated October 15, 2009, from the attorneys for Luigi Quarta, the plaintiff in the matter which had previously been opened sua sponte. By letter dated October 26, 2009 sent to the address the respondent had listed with OCA, the Grievance Committee requested the respondent's answer within 10 days. No response was received. By certified letter to the respondent dated December 11, 2009, the Grievance Committee reminded him that his failure to cooperate constituted professional misconduct independent of the merits and demanded an answer within 10 days. No response was received.

By certified letter to the respondent dated January 12, 2010, the Grievance Committee apprised the respondent that it was authorized to move to suspend any attorney who failed to cooperate with a disciplinary investigation and demanded his answer within five days. Although postal records reflect delivery on January 13, 2010, no response was received.

The Grievance Committee received a complaint from Patricia Hodelin, dated December 18, 2009, alleging that the respondent misappropriated funds held in escrow for her and her late husband, and that he misappropriated funds entrusted to him by the Estate of Vernon Hodelin. By letter dated December 29, 2009 sent to the respondent at the address listed with OCA, the Grievance Committee requested his answer within 10 days. No response was received. By certified letter to the respondent dated February 2, 2010, the Grievance Committee advised that failure to cooperate constituted professional misconduct independent of the merits and requested his answer within 10 days. Although postal records reflect delivery on or about February 4, 2010, no response was received.

A judicial subpoena and subpoena duces tecum were personally served on the respondent on March 5, 2010, requiring his appearance at the Grievance Committee's offices to give testimony under oath on March 16, 2010 with respect to the four complaints and for the production of documents on March 11, 2010. Although the Grievance Committee left telephone messages at the office of the respondent's counsel and on his cell phone to confirm the appearance, the calls were never returned. Nor did the respondent deliver files or appear for an examination under oath as directed.

The respondent's counsel advised that he was unaware of the required appearance by his client. A transcript memorializing the respondent's default was taken on March 16, 2010.

By letters dated March 16, 2010, to both the respondent and his counsel, the Grievance Committee advised that the respondent's failures to cooperate and to respond to the subpoenas would be brought to the court's attention. By facsimile dated March 17, 2010, the respondent's counsel asked the Grievance Committee to allow him to "try to straighten out" matters with his client before proceeding. At counsel's request, the respondent's appearance was adjourned to March 25, 2010.

The respondent's counsel and his partner appeared at the Grievance Committee's offices on March 25, 2010, advised that they currently represented the respondent on all matters, requested copies of the last two complaints and sought time to submit written responses prior to rescheduling the examination under oath. By letter to the respondent's counsel dated April 14, 2010, the Grievance Committee requested all outstanding responses by April 20, 2010 so that the respondent's examination under oath could be scheduled. No response was received.

By certified letter to the respondent's counsel dated April 28, 2010, the Grievance Committee reminded counsel that his client's failure to cooperate constituted professional misconduct independent of the merits and requested all responses within 10 days. Although postal records reflect delivery to the office of the respondent's counsel on April 29, 2010, no response was received. By letter dated May 20, 2010, the Grievance Committee informed the respondent's counsel that the respondent's examination under oath was scheduled for June 2, 2010.

The Grievance Committee telephoned the respondent's counsel on June 1, 2010, to confirm the appearance. Counsel replied that he had not received the letter and requested additional time to secure the respondent's cooperation. The Grievance Committee advised that a subpoena would be served upon the respondent if no response was received. Inasmuch as no further information was received, the Grievance Committee personally served the respondent on June 28, 2010, with a Judicial Subpoena and Subpoena Duces Tecum requiring his appearance and the production of specified documents on July 8, 2010.

The Grievance Committee telephoned the respondent's counsel on July 7, 2010, to confirm the appearance of his client on July 8, 2010. The respondent's counsel indicated that he knew nothing of the appearance, that he was not appearing for his client and that his client was not returning his telephone calls. The respondent failed to appear or to deliver the legal files. A transcript noting the respondent's default on July 8, 2010, was taken.

By letter dated July 8, 2010, the respondent's counsel informed the Grievance Committee that he was withdrawing as counsel inasmuch as the respondent had not been cooperating with him.

Although personally served with both the petition and the order to show cause on July 29, 2010, the respondent has failed to interpose any reply.

Accordingly, the Grievance Committee's motion is granted without opposition, 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 the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him based on the petition dated July 22, 2010.

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

ENTER:

Matthew G. Kiernan

Clerk of the Court