Appellate Division: Second Judicial Department

M130634

E/ct

WILLIAM F. MASTRO, A.P.J.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON

ANITA R. FLORIO, JJ.

2011-07441 In the Matter of Richard D. Feldman, admitted as Richard David Feldman, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Richard D. Feldman, respondent. (Attorney Registration No. 1116235)

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), 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; (2) to authorize the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent based on a verified petition dated August 4, 2011; and (3) to refer the issues raised by the verified petition and any answer thereto 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 2, 1975, under the name Richard David Feldman.

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), the respondent, Richard D. Feldman, admitted as Richard David Feldman, 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 D. Feldman, admitted as Richard David Feldman 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 D. Feldman, admitted as Richard David Feldman, 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, as petitioner, is authorized to institute and prosecute a disciplinary proceeding based on the verified petition dated August 4, 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, New York 11788, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that the respondent, Richard D. Feldman, admitted as Richard David Feldman, is directed to serve an answer on the petitioner and the Special Referee and file the original answer with this Court within 20 days after service upon him of a copy of this decision and order on motion; and it is further,

ORDERED that the issues raised by the verified petition and any answer thereto are referred to Norma Giffords, Randazzo & Giffords, PC, 3000 Marcus Avenue, Suite 1E11, Lake Success, N.Y. 11042, 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, Richard D. Feldman, admitted as Richard David Feldman, 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 Grievance Committee).

The instant motion emanates from the Grievance Committee's investigation of two complaints of professional misconduct.

Complaint of Gary Menkes

On or about January 9, 2008, the Grievance Committee received a complaint from the respondent's former client, Gary Menkes (hereinafter the Menkes complaint), alleging that the respondent represented him, or members of his immediate family, in connection with four separate real estate transactions in which he (Menkes) was the seller and that the respondent failed to account for the proceeds received. In addition, the respondent represented Menkes in connection with the purchase of residential real estate and similarly failed to provide him with a deed, a certificate of occupancy, and/or other documents normally associated with the purchase of real property. During the course of "several years," Menkes made repeated requests for an accounting, to no avail.

By letter dated January 23, 2008, sent via first class mail to the respondent's business address, the Grievance Committee advised him that the Menkes complaint had been filed; that an investigation had been commenced; and that he was required to submit a written response to the allegations of the complaint within 10 days of his receipt of the Grievance Committee's letter. No response was received.

By letter dated July 7, 2008, sent via certified mail to the respondent's business address, the Grievance Committee advised the respondent that no response to the Menkes complaint had been received and demanded that he submit a written answer to the complaint within five days of receipt of the Grievance Committee's letter. The July 7, 2008, letter was returned to the Grievance Committee by the United States Postal Service marked "Return to Sender."

On or about October 6, 2008, this Court issued a Judicial Subpoena and a Judicial Subpoena Duces Tecum, both of which were addressed to the respondent at the address listed with the New York State Office of Court Administration (hereinafter OCA). However, the respondent's law office was no longer at said address and the Grievance Committee was unable to serve the subpoenas.

On or about September 10, 2009, the respondent was personally served at his residence in Nassau County with a judicial subpoena and a subpoena duces tecum directing him to appear at the offices of the Grievance Committee on October 1, 2009, and to produce, inter alia, banking records related to his representation of Menkes.

On or about September 30, 2009, the respondent telephoned Grievance Committee counsel and requested that his appearance, which was scheduled for the next day, be adjourned for a minimum of one week, after which he would contact the Grievance Committee in order to reschedule his appearance. The request was granted. However, the respondent thereafter failed to contact the Grievance Committee to reschedule his appearance. On October 21, 2009, counsel for the Grievance Committee telephoned the respondent on his cellular phone and left a message asking that he return the call. He failed to do so. On February 24, 2010, counsel for the Grievance Committee once again telephoned the respondent on his cellular phone and left a message asking that he return the call. He once again failed to do so. On May 12, 2010, counsel for the Grievance Committee telephoned the respondent on his cellular phone for the third time, and left another message asking that he return the call. Again, he failed to do so. On May 14, 2010, counsel for the Grievance Committee made a further attempt to reach the respondent via his cellular phone, and left a message requesting that he contact counsel. On May 17, 2010, the respondent telephoned counsel for the Grievance Committee and left a message advising that he had been "out of the country," that he was now "in Florida," and that he would telephone counsel upon his return to New York. On October 10, 2010, having heard nothing further from the respondent, counsel for the Grievance Committee telephoned him on his cellular phone and left a message asking that he return the call. He failed to do so.

On December 9, 2010, counsel for the Grievance Committee once again telephoned the respondent on his cellular phone and left a message advising him that no answer to the Menkes complaint had been received and that an examination under oath (hereinafter EUO) needed to be scheduled.

On December 16, 2010, the respondent telephoned counsel for the Grievance Committee and advised that he was "unwell" and would telephone again, within the next several weeks, to reschedule his EUO.

On or about April 21, 2011, the respondent was personally served at his residence in Nassau County with a judicial subpoena and a judicial subpoena duces tecum directing him to appear at the Grievance Committee's offices on May 11, 2011, and to produce, inter alia, banking records related to his representation of Menkes.

On or about April 21, 2011, the respondent was also personally served at his residence in Nassau County with a letter dated April 19, 2011, advising him, inter alia, that, after reviewing IOLA account bank statements provided by Citibank pursuant to subpoena, the Grievance Committee had reason to believe that, between September 23, 2005 and October 24, 2006, he had misappropriated $25,000 in client funds and that, on four occasions between June 26, 2006 and September 28, 2006, the amount of funds on deposit in his IOLA account at CitiBank was insufficient to pay checks issued against the account.

By letter dated May 17, 2011, and received at the offices of the Grievance Committee on May 31, 2011, the respondent advised, inter alia, that he had not practiced law for the past three years; that he had not taken any continuing Legal Education classes; that he had not registered as an attorney; and that he was unable to locate his CitiBank IOLA records, since they had been left in the office of a client prior to the respondent having "suddenly" gone to Florida.

To date, the respondent has failed to submit a written response to the Menkes complaint and has failed to submit financial records concerning his receipt and retention of funds received on behalf of Menkes and/or members of Menkes's immediate family.

Sua Sponte Investigation

On or about May 12, 2011, the Grievance Committee opened a sua sponte complaint against the respondent based upon his failure to re-register as attorney, as required by Judiciary Law § 468-a and Part 118.1 of the Rules of the Chief Administrator of the Courts (22 NYCRR 118.1).

By letter dated May 12, 2011, sent to the respondent's home address, he was advised that a sua sponte complaint had been opened and was being investigated. He was directed to re-register forthwith; to submit proof of compliance to the Grievance Committee; and to submit a written answer, within 10 days of receipt of the Grievance Committee's letter, explaining his admitted failure to re-register.

By letter dated May 17, 2011, and received at the Grievance Committee's offices on May 31, 2011, the respondent advised, inter alia, that he had not practiced law for the past three years; that he had not taken any Continuing Legal Education classes; and that he had not re-registered as an attorney. In that same letter, the respondent requested that his "status be listed as inactive subject to a re-application in the event of a change of circumstances."

To date, the respondent has failed to re-register with OCA and/or pay the required biennial registration fees for 2008-2009 and 2010-2011 periods.

The respondent has neither opposed the Grievance Committee's motion nor submitted any response relative 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), 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.

MASTRO, A.P.J., RIVERA, SKELOS, DILLON and FLORIO, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court