Appellate Division: Second Judicial Department

M130577

E/ct

WILLIAM F. MASTRO, A.P.J.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON

CHERYL E. CHAMBERS, JJ.

2011-07440 In the Matter of Timothy F. Daly, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Thomas F. Daly, respondent. (Attorney Registration No. 2630754)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District (1) to suspend the respondent from the practice of law pending the consideration of charges of professional misconduct against him 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 lawful demands of the Grievance Committee in connection with its investigations into his professional conduct and other uncontroverted evidence of serious professional misconduct; (2) to authorize the institution and prosecution of a disciplinary proceeding against the respondent based upon a verified petition dated August 9, 2011; and (3) to direct that a hearing be held before a Special Referee appointed to hear and report with respect to each of the issues raised by the charges set forth in the verified petition and any answer thereto. 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 19, 1994.

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, Timothy F. Daly, 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, Timothy F. Daly, 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, Timothy F. Daly, 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, as petitioner, against Timothy F. Daly, as respondent, based on the verified petition dated August 9, 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 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, Timothy F. Daly, 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 Honorable Kenneth Davis, a retired Justice of Supreme Court, Nassau County, 19 Harriett Drive, Syosset, N.Y. 11791 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, Timothy F. Daly, 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 serious professional misconduct immediately threatening the public interest based upon his failure to cooperate with lawful demands of the Grievance Committee for the Tenth Judicial District in connection with its investigation into complaints of professional misconduct and other uncontroverted evidence of serious professional misconduct. The instant motion emanates from the Grievance Committee's investigation of three complaints of professional misconduct filed against the respondent, as follows:

Complaint of Dinorah Collazo

In or about October 2006, the Grievance Committee received a complaint of professional misconduct against the respondent from Dinorah Collazo (hereinafter the Collazo complaint). Collazo had retained the respondent in or about May 2006 to represent her in the purchase of a home. Collazo gave the respondent $5,000 towards a down payment on the subject property. The respondent had been recommended to Collazo by the seller of the property, Efrain Ahmed (also known as "Steve"). Prior to retaining the respondent, Collazo gave "Steve" a check for $1,000 to "secure the house." In or about June 2006, Collazo applied for a mortgage, but her application was denied due to a low credit score. At or about that time, Collazo contacted "Steve" and requested the return of her deposit; she was advised to make her request in writing. Collazo thereafter contacted the respondent and asked him to make a written request for the return of her deposit. The respondent advised Collazo that he would do so. Subsequently, Collazo endeavored to get an update on the status of the matter, to little or no avail. Repeated calls to the respondent 's office by Collazo and a friend went unanswered. When Collazo appeared at the respondent's office in person, he advised her that he had attempted to "call" the seller's attorney, but had not received a call back.

On or about October 13, 2006, the Grievance Committee sent a letter to the respondent requesting a written answer to the Collazo complaint. No response was received. On or about January 8, 2007, the Grievance Committee sent a letter to the respondent, via certified mail, requesting a written answer to the Collazo complaint and advising him that "failure to respond or otherwise cooperate with this Committee constitutes professional misconduct independent of the merits of the underlying complaint." Although the respondent's office signed for the letter on January 9, 2007, no answer was received.

On or about March 12, 2007, the Grievance Committee sent a letter to the respondent, via certified mail, demanding a written answer to the Collazo complaint, as well as an explanation for his failure to timely cooperate with the Committee. The letter further advised that "pursuant to [22 NYCRR 691.4(l)], our Committee is authorized to move to suspend from practice any attorney who fails to cooperate with a disciplinary investigation." Although the respondent's office signed for the letter on March 13, 2007, no response was received. On November 20, 2007, a copy of the March 12, 2007, letter was delivered, by hand, to the respondent. Although the respondent personally signed for the letter, no response was received.

Complaint of Olive Jones

In or about February 2007, the Grievance Committee received a complaint of professional misconduct against the respondent from Olive Jones (hereinafter the Jones complaint).

Jones had refinanced her home mortgage through a California mortgage company in or about December 2006. At that time, the respondent was "provided" to Jones by the mortgage company as her attorney for the closing, which occurred on December 14, 2006. The closing statement prepared by the respondent reflected a disbursement to Jones in the amount of $24,148.17. Approximately two weeks after the closing, Jones received a check from the respondent in the amount of $19,102.02. However, that figure does not appear on the closing statement prepared by the respondent. Jones called the respondent's office on several occasions to request an explanation for the disparity between the disbursement she received and the closing statement, but was unable to speak to him.

On or about February 2, 2007, the Grievance Committee referred this matter to the Nassau County Bar Association (hereinafter the NCBA) for investigation. Between February 6, 2007, and May 21, 2007, the NCBA initiated six contacts with the respondent. On April 2, 2007, the respondent advised the NCBA that he would send them an answer to the Jones complaint "in a day or two." On May 21, 2007, having received no answer from the respondent, the NCBA returned the file to the Grievance Committee. On or about September 28, 2007, the Grievance Committee sent a letter to the respondent, via certified mail, requesting a written response to the Jones complaint. Although the respondent's office signed for the letter on October 1, 2007, no response was received.

On or about January 29, 2008, a copy of the Grievance Committee's September 28, 2007, letter was delivered, by hand, to the respondent, and he was advised that "failure to submit an answer to the complaint constitutes professional misconduct' independent of the merits of the complaint, and will be treated accordingly by the Committee." Although the respondent personally signed for the letter, no response was received.

Complaint of Marianna Staszynska

In or about July 2008, the Grievance Committee received a complaint of professional misconduct against the respondent from Marianna Staszynska (hereinafter the Staszynska complaint). Staszynska had retained the respondent in or about August 2005 to represent her in a foreclosure proceeding. On or about August 25, 2005, the subject property was sold at auction. Staszynska was to receive the balance of the proceeds - $123,000 - after the mortgage was satisfied.

Following the auction, Staszynska began calling the respondent "several times a week" to request that the $123,000 be disbursed. The respondent assured Staszynska that the funds were in the bank, "earning interest." However, approximately three weeks after the auction, the respondent stopped responding to Staszynska's calls. On or about July 25, 2008, the Grievance Committee sent a letter to the respondent requesting a written answer to the Staszynska complaint. No response was received.

Failure to Cooperate

On October 23, 2008, a letter was hand-delivered to the respondent stating that he had failed to comply with the Grievance Committee's requests for written answers in connection with the foregoing complaints. The respondent was directed to contact the Grievance Committee to schedule an examination under oath (hereinafter EUO). No response was received.

On or about April 7, 2009, a Judicial Subpoena and a Subpoena Duces Tecum were served at the respondent's office relative to the foregoing complaints, and a member of the respondent's office staff signed for same. The subpoenas directed the respondent to appear at the offices of the Grievance Committee on May 4, 2009, at 10:00 A.M., with the files pertaining to the subject complaints.

On April 30, 2009, the respondent telephoned Grievance Committee staff and stated that his mother was in a "grave medical condition." He requested an adjournment of the EUO and it was adjourned until May 18, 2009. On May 18, 2009, the respondent appeared at the offices of the Grievance Committee and a transcript was prepared. However, the respondent failed to produce a large portion of the case files referenced in the Subpoena Duces Tecum, citing "family difficulties" and an "office move" as reasons for this failure. During the EUO, the respondent was directed to provide the missing documents to the Grievance Committee, and he agreed to do so. On or about June 9, 2009, the Grievance Committee sent a letter to the respondent, demanding the documents he had agreed to produce at the EUO. On or about September 24, 2009, the Grievance Committee sent a letter to the respondent again demanding the documents he had agreed to produce, as well as written answers to the outstanding complaints. On or about April 26, 2010, the Grievance Committee sent a letter to the respondent demanding the documents he had failed to produce, as well as written answers to the outstanding complaints. The April 26, 2010, letter advised the respondent that his "continued failure to provide the requested information will result in the Committee moving for your immediate suspension for failure to cooperate."

To date, the respondent has failed to provide written answers to the three referenced complaints and/or the documents demanded by the Grievance Committee at the respondent's EUO on May 28, 2009.

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) 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.

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

ENTER:

Aprilanne Agostino

Clerk of the Court