Appellate Division: Second Judicial Department

M131589

E/ct

WILLIAM F. MASTRO, A.P.J.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON

DANIEL D. ANGIOLILLO, JJ.

2011-06543 In the Matter of Allen S. Gold, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Allen S. Gold, respondent. (Attorney Registration No. 2687390)

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) for authorization to institute and prosecute a disciplinary proceeding based upon the allegations set forth in a verified petition dated July 12, 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 19, 1995.

Upon the papers filed in support of the motion and no papers having been filed in opposition or response 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, Allen S. Gold, 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, Allen S. Gold, 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, Allen S. Gold, 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 Allen S. Gold, based on the verified petition dated July 12, 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, Allen S. Gold, shall serve a copy of his answer to the petition upon the Grievance Committee and the Special Referee, and file the original with the Clerk of the Court; and it is further,

ORDERED that the issues raised by the verified petition and any answer thereto are referred to the Honorable Geoffrey O. 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 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, Allen S. Gold, 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), with respect to its investigation of one complaint of professional misconduct.

On or about December 6, 2010, the Grievance Committee received a complaint against the respondent submitted by Paul Niehaus, on behalf of his client, David Goldstein. The complaint alleged that the respondent represented Mr. Goldstein in a matter entitled Goldstein v Massachusetts Mutual Insurance Company, commenced in the Supreme Court, New York County, under Index No. 113804/99. Mr. Goldstein, the plaintiff, sought, inter alia, declaratory relief that "the requirement in his disability policy that he be under a doctor's care and that monthly reports be submitted be deemed waived by defendant." By order dated May 3, 2000, the Supreme Court dismissed the complaint.

On or about February 2, 2005, the respondent commenced another action entitled Goldstein v. Massachusetts Mutual Insurance Company, in the Supreme Court, New York County, under Index No. 2515/05. The verified complaint, dated February 1, 2005, sought a declaratory judgment based, in sum and substance, on the same allegations previously alleged. By order dated August 22, 2005, the court found that the action was barred based on res judicata, as well as the applicable statute of limitations, and the matter was dismissed.

From in or about 2001 through in or about 2006, the respondent allegedly engaged in misleading and deceitful conduct by permitting his client, David Goldstein, to believe that the respondent had commenced a new action on Mr. Goldstein's behalf in 2001 (hereinafter the purported 2001 action) when, in fact, no new action had been commenced after dismissal of the first action until the commencement of the 2005 action. In response to an inquiry from David Goldstein regarding the purported 2001 action, the respondent, on or about October 29, 2004, forwarded to him copies of a purported amended summons and a purported amended verified complaint, dated November 3, 2003, and on or about January 6, 2006, forwarded to him copies of a purported summons and a purported verified complaint, dated February 12, 2001. None of those pleadings were filed. In response to another inquiry from David Goldstein regarding the purported 2001 action, the respondent, on or about May 3, 2006, forward to him copies of a purported notice of deposition and a purported verified answer, dated April 27, 2001, allegedly submitted by Michael Yoelli, of, Assail & Yoelli, LLP, on behalf of Massachusetts Mutual Insurance Company. Neither the purported notice of deposition, nor the purported verified answer, had been created, prepared or served by Michael Yoelli.

Based on the foregoing, David Goldstein commenced an action against the respondent, on or about December 20, 2006, entitled Goldstein v Gold, in the United States District Court for the Eastern District of New York, under Index No. CV-06-6707, alleging, inter alia, that the respondent had engaged in fraud and legal malpractice. In a Final Judgment by Consent dated November 4, 2010, the respondent consented to the entry of a judgment against him in the amount of $250,000.

By letter dated December 13, 2010, mailed to 5535 42nd Terrace, Vero Beach, Florida 32967 (the business address listed for the respondent with the Office of Court Administration at that time), the Grievance Committee asked the respondent to submit a written answer to the Goldstein complaint. By letter dated December 27, 2010, the respondent submitted an answer and response to a background questionaire. The answer contained another address for the respondent, to wit, P.O. Box 700148, Wabasso, Florida 32970, and the background questionnaire stated that the respondent's home address was 5535 42nd Terrace, Vero Beach, Florida 32970.

By letter dated December 30, 2010, mailed to P.O. Box 700148, Wabasso, Florida 32970, the Grievance Committee asked the respondent to provide additional information regarding the Goldstein complaint. No response was received. By letter dated January 21, 2011, sent by certified mail, return receipt requested, to P.O. Box 700148, Wabasso, Florida 32970, the Grievance Committee again asked the respondent to provide additional information regarding the Goldstein complaint. Postal records reflect that the letter was "unclaimed." By letter dated March 2, 2011, sent by certified mail, return receipt requested, to P.O. Box 700148, Wabasso, Florida 32970, the Grievance Committee asked the respondent to provide additional information regarding the Goldstein complaint, as requested in its prior letters. Postal records reflect that the letter was "unclaimed." By letter dated March 2, 2011, sent by regular first class mail to P.O. Box 700148, Wabasso, Florida 32970, the Grievance Committee again asked the respondent to provide additional information regarding the Goldstein complaint. Although the letter was not returned, no response was received. By letter dated March 2, 2011, sent by certified mail, return receipt requested, to 5535 42nd Terrace, Vero Beach, Florida 32967, the Grievance Committee repeated its demand that the respondent provide additional information regarding the Goldstein complaint. Postal records reflect that the letter was "unclaimed." By letter dated March 2, 2011, sent by regular first class mail to 5535 42nd Terrace, Vero Beach, Florida 32967, the Grievance Committee again asked the respondent to provide additional information regarding the Goldstein complaint. Although the letter was not returned, no response was received.

The Grievance Committee sent four further letters to the respondent all dated April 6, 2011. Two of the letters were sent to P.O. Box 700148, Wabasso, Florida 32970, one by certified mail, return receipt requested, and one by regular first class mail, and two of the letters were sent to 5535 42nd Terrace, Vero Beach, Florida 32967, one by certified mail, return receipt requested, and one by regular mail. The letters asked the respondent to provide additional information regarding the Goldstein complaint, and advised the respondent that, should he continue to fail to cooperate in this investigation, the Grievance Committee would seek intervention from the Appellate Division, Second Department. Postal records reflect that the letters sent by certified mail were "unclaimed." The letters sent by regular mail were not returned, but no response was received.

The Grievance Committee discovered that, as of February 16, 2011, the records of the Office of Court Administration reflected that the respondent's business address was 450 Mariners Way, Copiague, New York 11726-5114. Accordingly, the Grievance Committee sent two letters both dated April 22, 2011, to the respondent at that address, one by certified mail, return receipt requested, and one by regular first class mail. In the letters, the Grievance Committee restated its demand that the respondent provide additional information regarding the Goldstein complaint, and advised the respondent that, should he continue to fail to cooperate in this investigation, the Grievance Committee would seek intervention from the Appellate Division, Second Department. Postal records reflect that the letter sent by certified mail was returned "undeliverable as addressed." The letter sent by regular first class mail was returned with the notation "attempted-not known unable to forward."

Subsequently the Grievance Committee sent six letters to the respondent all dated May 13, 2011. Two letters were sent to 450 Mariners Way, Copiague, New York 11726-5114, one by certified mail, return receipt requested, and one by regular first class mail; two letters were sent to P.O. Box 700148, Wabasso, Florida 32970, one by certified mail, return receipt requested, and one by regular first class mail; and two letters were sent to 5535 42nd Terrace, Vero Beach, Florida 32967, one by certified mail, return receipt requested, and one by regular first class mail. In the letters, the Grievance Committee again asked the respondent to provide additional information regarding the Goldstein complaint, and advised the respondent that should he continue to fail to cooperate in this investigation, the Grievance Committee would seek intervention by the Appellate Division, Second Department, "including requesting that [he] be immediately suspended from the practice of law in the State of New York pending resolution of this matter." The letter sent certified mail, return receipt requested, to Copiague was returned with the notation "attempted not known." The letter sent by regular first class mail to Copiague was returned with the notation "attempted-not known unable to forward." The letter sent by certified mail, return receipt requested, to Wabasso was returned with the notation "undeliverable as addressed." The letter sent by regular first class mail to Wabasso was returned with the notation "not deliverable as addressed unable to forward." The letter sent by certified mail, return receipt requested, to Vero Beach was "unclaimed." The letter sent by regular first class mail to Vero Beach was not returned, but no response was received.

The respondent has neither opposed the Grievance Committee's motion nor submitted a 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 ANGIOLILLO, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court