Appellate Division: Second Judicial Department

M138583

E/ct

WILLIAM F. MASTRO, A.P.J.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON

SHERI S. ROMAN, JJ.

2008-08838 In the Matter of Nathan Levner, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Nathan Levner, respondent. (Attorney Registration No. 1933571)

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), (ii), 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 legitimate function of the Grievance Committee in its investigation of a complaint of professional misconduct, his admission under oath that he misappropriated client funds entrusted to him for his own use and benefit, and other uncontroverted evidence of his professional misconduct; (2) to authorize the institution and prosecution of a disciplinary proceeding against the respondent based upon a verified petition dated February 23, 2012; 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 May 30, 1984.

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), (ii), and (iii), the respondent, Nathan Levner, 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, Nathan Levner, 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, Nathan Levner, 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 Nathan Levner, as respondent, based on the verified petition dated February 23, 2012; 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, Nathan Levner, 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 James Starkey, a retired Justice of the Supreme Court, Kings County, 215 Adams Street, Suite 15B, Brooklyn, NY 11201, 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, Nathan Levner, 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 legitimate function of the Grievance Committee for the Tenth Judicial District in its investigation of a complaint of professional misconduct against him; his admission under oath that he misappropriated client funds entrusted to him as a fiduciary for his own use and benefit; and other uncontroverted evidence of his professional misconduct. The instant motion emanates from an investigation by the Grievance Committee into a complaint of professional misconduct received from John P. Rosenblatt, on behalf of his clients, David Fennes and Jeanne Fennes.

The complaint alleged that in or about July 2011, the Fenneses engaged the respondent to represent them in the sale of their former residence and the purchase of a new home. At the closing held on July 15, 2011, in connection with the sale of the Fenneses's former residence, $10,000 was deposited with the respondent, in escrow, to guarantee delivery of possession of the premises to the purchaser. Thereafter, prior to the closing in connection with the purchase of the Fenneses's new residence, the respondent failed to return any telephone calls and was generally unreachable. The Fenneses were required to retain a new attorney to represent them at the closing.

The closing in connection with the Fenneses's new residence occurred on July 28, 2011, and they vacated their former residence on August 1, 2011. The attorney for the purchaser of the Fenneses's former residence attempted to notify the respondent that the premises were vacated, in order to effectuate the release of the $10,000 held in escrow by the respondent to the Fenneses. However, the respondent failed to respond and/or return the $10,000.

By letter dated September 30, 2011, the Grievance Committee informed the respondent that an investigation had been opened into allegations of professional misconduct based upon the complaint of David and Jeanne Fennes, and requested that he provide an answer to the complaint within 10 days of receipt. The respondent failed to answer.

By letter dated November 3, 2011, sent via certified mail, return receipt requested, the Grievance Committee provided the respondent with a copy of its previous letter and requested his answer to Fenneses's complaint within five days of receipt. Although the postal receipt reflects that delivery of the letter to respondent was made on or about November 5, 2011, the respondent failed to answer.

By letter dated November 18, 2011, sent via certified mail, return receipt requested, the Grievance Committee provided the respondent with copies of its prior letters and demanded his answer to the Fenneses's complaint within 10 days of receipt. Although postal records reflect that delivery of the letter to the respondent was made on or about November 19, 2011, the respondent failed to answer.

Thereafter, the Grievance Committee served upon the respondent a judicial subpoena and subpoena duces tecum commanding his presence at the Offices for the Grievance Committee for an Examination Under Oath (hereinafter EUO) and production of his attorney escrow records.

Respondent appeared at the Grievance Committee's Offices on January 9, 2012, to give testimony concerning the foregoing matter, and was placed under oath prior to testifying.

The respondent's bank and bookkeeping records for the period July 31, 2011, through September 30, 2011, show that the balance in the respondent's attorney escrow account fluctuated between $1,060.21 and $960.21. During this period, the respondent was required to be holding in escrow a minimum of $10,000 on behalf of the Fenneses, pursuant to an agreement entered into between the parties dated July 19, 2011.

In response to questioning regarding the whereabouts and maintenance of the Fenneses's $10,000, the respondent admitted under oath and on the record that he had transferred $10,000 in client funds, entrusted to him as a fiduciary, without authorization in order to make a personal investment for his own use and benefit, sometime in or about 2010. Although the $10,000 was not, specifically, the Fenneses's money, the transfer of client funds in 2010 created a shortfall in the respondent's escrow account, which resulted in his inability to remit the $10,000 to the Fenneses. In essence, the respondent had been repeatedly converting client funds ever since 2010.

The respondent has neither opposed the motion nor submitted 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), (ii), 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, APJ, RIVERA, SKELOS, DILLON and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court