Appellate Division: Second Judicial Department

M129021

E/ct

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON, JJ.

2011-04814 In the Matter of Stephen K. Malone, admitted as Stephen Kean Malone, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Stephen K. Malone, respondent. (Attorney Registration No. 1743798)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District (1) to suspend 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 based upon his failure to cooperate with the lawful demands of the Grievance Committee and other uncontroverted evidence of professional misconduct; (2) to authorize the Grievance Committee to institute and prosecute a disciplinary proceeding based upon the allegations set forth in a verified petition dated May10, 2011; and (3) to refer 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 July 29, 1981, under the name Stephen Kean Malone.

Upon the papers filed in support of the motion and no papers having been filed 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, Stephen K. Malone, admitted as Stephen Kean Malone, 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, Stephen K. Malone, admitted as Stephen Kean Malone, 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, Stephen K. Malone, admitted as Stephen Kean Malone, 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 Stephen K. Malone, admitted as Stephen Kean Malone, based on the verified petition dated May 10, 2011; 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 decision and order on motion, the respondent, Stephen K. Malone, admitted as Stephen Kean Malone, shall serve a copy of his answer to the petition upon the Grievance Committee and the Special Referee, and file the original with the Court; and it is further,

ORDERED that the issues raised by the verified petition and any answer thereto are referred to the Honorable Michael F. Mullen, c/o Lamb & Barnosky, LLP, 534 Broadhollow Road, Suite 210, P.O. Box 9034, Melville, N.Y. 11747-9034, 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, Stephen K. Malone, admitted as Stephen Kean Malone, 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 (hereinafter the Grievance Committee) and other uncontroverted evidence of professional misconduct.

This motion emanates from the Grievance Committee's investigation of two complaints of professional misconduct against the respondent.

Sua Sponte Investigation

Starting in July 2008, the Grievance Committee for the Tenth Judicial District (hereinafter Grievance Committee) asked the respondent to re-register as an attorney with the Office of Court Administration (hereinafter OCA) for the 2008-2009 biennial registration period, and, subsequently, when he failed to re-register for the 2010-2011 biennial registration period, the Grievance Committee asked the respondent to re-register for that period as well. The respondent has failed to re-register for the 2008-2009 and 2010-2011 biennial registration periods or explain his failure to re-register.

By letter dated July 21, 2008, the respondent alleged that he was submitting certain registration materials to OCA. After determining that the respondent had not re-registered, the Grievance Committee, by letter dated November 19, 2008, sent via certified mail, return receipt requested, reminded the respondent of his prior representation and asked him to re-register and provide an explanation of his failure to have done so. The postal receipt reflects that the respondent received this letter on November 20, 2008. By letter dated January 29, 2009, sent via certified mail, return receipt requested, the Grievance Committee provided the respondent with a copy of the previous letter, reminded him of his duty to re-register, and once again requested that he provide an explanation for his failure to re-register. The postal receipt reflects that the respondent received this letter on February 2, 2009. By letter dated February 18, 2009, sent via certified mail, return receipt requested, the Grievance Committee provided the respondent with copies of the previous letters and demanded an explanation for his failure to re- register, within five days. The postal receipt reflects that the respondent received this letter on February 24, 2009. By letter dated May 29, 2009, the respondent was notified that a sua sponte investigation had been commenced based upon his failure to re-register and he was advised to immediately re-register, as required by Judiciary Law § 468-a and the Rules of the Chief Administrator of the Courts (22 NYCRR § 118.1). The respondent was also asked to submit proof of his compliance, as well as a written answer explaining his failure to re-register, within 10 days of his receipt of the letter.

On June 16, 2009, a Judicial Subpoena was served upon the respondent directing him to appear at the Grievance Committee's offices on June 30, 2009. The respondent requested, and was granted, two adjournments. On July 16, 2009, the respondent represented to the Grievance Committee that he was mailing his registration materials to OCA that day. Following another adjournment of the respondent's appearance, he was advised, by letter dated August 20, 2009, that, in lieu of rescheduling his appearance, the Grievance Committee would accept a written response along with proof of his re-registration. The respondent failed to respond to the Grievance Committee's letter dated August 20, 2009.

By letter dated January 7, 2010, the Grievance Committee requested an update from the respondent as to his re-registration efforts, and advised him to re-register forthwith, if he had not already done so, and to provide proof of same within 15 days of his receipt of the letter. By letter dated January 27, 2010, sent via certified mail, return receipt requested, the Grievance Committee provided the respondent with a copy of the previous letter and requested that he provide an explanation for his failure to answer the previous letter within 10 days. The postal receipt reflects that the respondent received this letter on January 28, 2010. By letter dated February 18, 2010, sent via certified mail, return receipt requested, the Grievance Committee provided the respondent with copies of the previous letters and demanded a response within ten 10 days. The postal receipt reflects that the respondent received this letter on February 22, 2010. By letter dated March 5, 2010, sent via certified mail, return receipt requested, the Grievance Committee provided the respondent with copies of the previous letters and demanded a response within 10 days. The postal receipt reflects that the respondent received this letter on March 9, 2010. By letter dated March 23, 2010, sent via certified mail, return receipt requested, the Grievance Committee provided the respondent with copies of the previous letters and demanded an explanation as to his failure to re- register as well as his failure to respond to the previous letters. The postal receipt reflects that the respondent received this letter on March 29, 2010.

By letter dated April 28, 2010, sent via certified mail, return receipt requested, the Grievance Committee memorialized a conversation between the respondent and Grievance Committee Chief Counsel Robert A. Green, wherein the respondent explained that he had been diagnosed with cancer and was due to undergo surgery. The Grievance Committee agreed that addressing the respondent's failure to re-register, as well as his failure to submit a written response to the Grievance Committee, could be delayed until such time as the respondent recovered from his surgery, on condition that he provide the Grievance Committee with documentation of his health issues within 10 days. Although the postal receipt reflects that the respondent received the letter on or about May 3, 2010, he failed to reply. By letter dated May 21, 2010, sent via certified mail, return receipt requested, the Grievance Committee provided the respondent with copies of the previous letters and reminded him of their request that he provide documentation pertaining to his health issues within 10 days. The postal receipt reflects that the respondent received the Grievance Committee 's letter on May 25, 2010.

A Judicial Subpoena was served upon the respondent on July 7, 2010, requiring him to appear at the Grievance Committee's offices on August 11, 2010, for an Examination Under Oath (EUO) regarding his failure to cooperate and his failure to re-register for the 2008-2009 and 2010-2011 biennial registration periods. The respondent's EUO was adjourned, on consent, until October 5, 2010, on which date the respondent appeared at the Grievance Committee's offices to give sworn testimony regarding his failure to cooperate and his failure to re-register. At his EUO, the respondent admitted that, as of October 5, 2010, despite his purported health problems, he continued to practice law in that he maintained three pending matters with three clients. The respondent acknowledged receipt of each and every letter sent to him by the Grievance Committee, and acknowledged his failure to either provide a written response or re-register with OCA. With respect to his re-registration for 2008-2009, the respondent stated that he had mailed the registration forms, but that they had been returned due to his failure to include a check for the registration fee. The respondent stated further that, as of October 5, 2010, he was suffering from health and financial difficulties; however, he agreed to bring his registration current within two weeks of his EUO.

By letter dated October 15, 2010, sent via certified mail, return receipt requested, the Grievance Committee reminded the respondent of the statements he made at his EUO, that is, that he would take steps to resolve his delinquent registration status. The Grievance Committee requested that the respondent advise, within five days of his receipt of the letter, as to the status of his re-registration efforts. The postal receipt reflects that the respondent received the letter on October 19, 2010.

By letter dated November 5, 2010, sent via certified mail, return receipt requested, the Grievance Committee provided the respondent with a copy of the prior letter, and again reminded him of his assertion under oath that he would re-register with OCA. The respondent was asked to provide the Grievance Committee with a letter explaining his efforts to re-register. The postal receipt reflects that the respondent received the Grievance Committee's letter on November 15, 2010.

In an undated letter received by the Grievance Committee on December 1, 2010, the respondent indicated that he had, contemporaneously with his mailing of the letter, also mailed his registration forms to OCA for the 2008-2009 biennial registration period, and that his registration forms for the 2010-2011 biennial registration period would be mailed on December 1, 2010. The respondent also stated that a copy of the registration forms was included with the letter to the Grievance Committee. However, no such forms were included.

By letter dated December 6, 2010, sent via certified mail, return receipt requested, the Grievance Committee advised the respondent that copies of the registration forms were not included with his undated letter. The Grievance Committee requested that the respondent provide copies of such registration forms, as well as proof of his re-registration in the form of a receipt from OCA and/or a cancelled check indicating payment of the required fee(s). The Grievance Committee advised the respondent that he would be given a reasonable amount of time to provide such documents but, if more than two weeks was required, an extension of time would have to be requested. The postal receipt reflects that the respondent received the Grievance Committee's letter on or about December 20, 2010.

An inquiry by the Grievance Committee to OCA on December 10, 2010, indicated that the respondent had not re-registered and/or sent in his registration forms for either the 2008-2009 or 2010-2011 biennial registration periods. To date, the respondent remains delinquent for the 2008-2009 and 2010-2011 biennial registration periods.

Complaint of Karen Bush

By letter dated July 19, 2010, the Grievance Committee informed the respondent that an investigation had been commenced against him based upon the complaint of Karen Bush (hereinafter the Bush complaint). The respondent was asked to provide a written answer to the Bush complaint within 10 days of his receipt of the letter. By letter dated August 4, 2010, the Grievance Committee provided the respondent with a copy of the previous letter and again requested that he provide an answer to the Bush complaint within 10 days of his receipt of the letter. By letter dated September 14, 2010, sent via certified mail, return receipt requested, the Grievance Committee provided the respondent with copies of the previous letters and again requested that he provide a written response to the Bush complaint within 10 days of receipt of the letter. The postal receipt reflects that the respondent received the letter on or about September 17, 2010. At the EUO held on October 5, 2010, the respondent acknowledged receipt of the Bush complaint, as well as several letters from the Grievance Committee requesting an answer to the complaint. The respondent was asked to provide an answer to the Bush complaint within 10 days of the EUO, which request was renewed by letter dated October 5, 2010. By letter dated November 10, 2010, sent via certified mail, return receipt requested, the Grievance Committee provided the respondent with copies of the previous letters, and asked him to provide an answer to the Bush complaint within five days of receipt of the letter. The postal receipt reflects that the respondent received the letter on November 23, 2010. The respondent has failed to answer to Bush complaint to date.

The respondent has neither opposed the motion, nor filed any response thereto.

Based upon 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) 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, PJ, MASTRO, RIVERA, SKELOS and DILLON, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court