Appellate Division: Second Judicial Department

M127823

E/ct

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

LEONARD B. AUSTIN, JJ.

2011-03984 In the Matter of Ralph E. Ciervo, admitted as Ralph Eugene Ciervo, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Ralph E. Ciervo, respondent. (Attorney Registration No. 1766245)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts 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 based on his failure to cooperate with the lawful demands of the Grievance Committee in its investigation of two complaints of professional misconduct; (2) authorizing the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent based upon the allegations set forth in a petition dated April 27, 2011; (3) directing the respondent to answer 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 October 22, 1975, under the name Ralph Eugene Ciervo.

Upon the papers filed in support of the motion and the papers filed 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), the respondent, Ralph E. Ciervo, admitted as Ralph Eugene Ciervo, 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 Ralph E. Ciervo, admitted as Ralph Eugene Ciervo, 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, Ralph E. Ciervo, admitted as Ralph Eugene Ciervo, 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 Second, Eleventh, and Thirteenth Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Ralph E. Ciervo, admitted as Ralph Eugene Ciervo, based on the petition dated April 27, 2011; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel, Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts, Renaissance Plaza, 335 Adams Street - Suite 2400, Brooklyn, N.Y. 11201-3745, 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 decision and order on motion, the respondent Ralph E. Ciervo, admitted as Ralph Eugene Ciervo, 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 Honorable Stella Schindler, a former New York City Family Court Judge, 63 East Ninth Street, #8J, New York, N.Y. 10003, as Special Referee to hear and report, together with her 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, Ralph E. Ciervo, admitted as Ralph Eugene Ciervo, 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 Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the Grievance Committee).

Gulston Complaint

In July 2010, the Grievance Committee received a complaint against the respondent from Herbert S. Gulston alleging, inter alia, that despite repeated requests and his payment of $3,500, the respondent had failed to start the probate process for his mother's estate. By letter dated July 20, 2010, sent via first class mail, the respondent was sent a copy of the complaint and he was directed to submit a written answer within 10 days of receipt. The letter was not returned, and the respondent did not answer or contact the Grievance Committee.

By letter dated August 6, 2010, a second copy of the complaint was sent, via first class and certified mail, to the respondent with directions for him to submit an answer within 10 days of receipt. The respondent was advised that failure to respond or otherwise cooperate constituted professional misconduct independent of the merits of the underlying complaint. Postal confirmation indicated that the letter was claimed on August 11, 2010. Still, no answer was received.

By letter dated September 16, 2010, a third copy of the complaint was sent, via first class and certified mail, to the respondent with directions for him to submit an answer within 10 days of receipt. The letter advised that should the respondent continue to fail to cooperate, the Grievance Committee might seek his immediate suspension. Postal confirmation indicated that the letter was claimed on September 17, 2010. No answer from the respondent was received.

Messages were left on the respondent's office phone and his cell phone on December 7, 2010, and December 8, 2010. On December 9, 2010, the respondent called the Grievance Committee and promised to respond in writing by December 12, 2010. However, no written response was received from the respondent.

Medina Complaint

In December 2010, the Grievance Committee received a complaint against the respondent from Julie Medina alleging, inter alia, that respondent was paid a $675 retainer and did no work on her divorce case and failed to return her telephone calls. By letter dated January 3, 2011, sent via first class mail, the respondent was sent a copy of the complaint and he was directed to submit a written answer within 10 days of receipt. The letter was not returned, and the respondent did not answer or contact the Grievance Committee. In January 2011, a second copy of the complaint was sent, via first class and certified mail, to the respondent with directions for him to submit an answer within 10 days of receipt. The respondent was advised that failure to respond or otherwise cooperate constituted professional misconduct independent of the merits of the underlying complaint. Postal confirmation indicated that the letter was claimed on January 25, 2011. No answer was received. By letter dated February 23, 2011, a third copy of the complaint was sent, via first class and certified mail, to the respondent with directions for him to submit an answer to the complaint and a written explanation for his failure to cooperate, within 10 days of receipt. The letter advised that should the respondent continue to fail to cooperate, the Grievance Committee might seek the respondent 's immediate suspension. The letter sent first class mail was not returned; the certified letter was returned unclaimed. No answer from the respondent was received.

On February 28, 2011, the Grievance Committee spoke to the respondent by telephone and he promised to provide a written response to the Medina complaint and a written explanation for his failure to cooperate. He was warned that if a written response was not timely received, the Grievance Committee would move for his immediate suspension from the practice of law. No correspondence was received from the respondent.

The respondent was previously admonished by letter dated October 7, 2010, for his dilatory conduct with regard to a client who paid him $870 to represent her in an uncontested divorce. While the respondent was retained in September 2008, he did not obtain a divorce decree for his client until May 2010, and only after a complaint was filed with the Queens County Bar Association and intervention by the Grievance Committee. The respondent's excuse for his delay in prosecuting the case was a October 2008 motor vehicle accident which caused him to sustain a double herniated disc. Chronic back pain, according to the respondent, prevented him from working for periods of time.

The respondent opposes his suspension in the interim. He has indicated in an affirmation dated June 9, 2011, that he will provide immediately to the Grievance Committee written answers to the two complaints. As for the reasons for his delay, the respondent states that his October 2008 car accident left him with serious physical injuries. The combination of pain killers, muscle relaxants, and anti-inflammatory medications have rendered him a sedentary individual. As a consequence, he has become depressed and gained more than 75 pounds. The weight gain and depression have compounded his mobility problem and affected his ability to conduct his normal business affairs.

The Grievance Committee has advised the Court that, to date, the respondent has not submitted a response to either the Gulston complaint or the Medina complaint.

Based on the foregoing, the 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 AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court