Appellate Division: Second Judicial Department

M163487

E/ct

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON

CHERYL E. CHAMBERS, JJ.

2013-07327 In the Matter of Susan Friedman Odery, an attorney and counselor-at-law, admitted as Susan Eileen Friedman. Grievance Committee for the Tenth Judicial District, petitioner; Susan Friedman Odery, respondent. (Attorney Registration No. 1835834)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District (1) pursuant to 22 NYCRR 691.4 (l)(1) (ii) and (iii) to suspend the respondent from the practice of law until further order of this Court based upon a finding that she is guilty of serious professional misconduct, immediately threatening the public interest; (2) to authorize the Grievance Committee to commence a disciplinary proceeding against the respondent, pursuant to Judiciary Law § 90, based upon allegations of professional misconduct set forth in a verified petition dated June 26, 2013; (3) to appoint Robert A. Green, Chief Counsel to the Grievance Committee for the Tenth Judicial District, to serve as attorney for the petitioner; (4) to appoint a Special Referee, to hear and report; and (5) to direct the respondent to serve and file an answer to the verified petition within 20 days. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the First Judicial Department on February 7, 1983, under the name Susan Eileen Friedman.

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 branch of the motion which is pursuant to 22 NYCRR 691.4

(l)(1)(ii) to suspend the respondent from the practice of law based on substantial admissions under oath is denied; and it is further,

ORDERED that the branch of the motion which is pursuant to 22 NYCRR 691.4(l)(1)(iii) to suspend the respondent from the practice of law based upon uncontroverted evidence of misconduct is granted, and the respondent, Susan Friedman Odery, admitted as Susan Eileen Friedman, 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 branches of the motion which are to authorize the Grievance Committee to commence a disciplinary proceeding, to appoint Robert A. Green to serve as attorney for the petitioner, to appoint a Special Referee, to hear and report, and to direct the respondent, Susan Friedman Odery, admitted as Susan Eileen Friedman, to answer within 20 days are granted; and it is further,

ORDERED that the respondent, Susan Friedman Odery, admitted as Susan Eileen Friedman, 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, Susan Friedman Odery, admitted as Susan Eileen Friedman, 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 herself 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 Susan Friedman Odery, admitted as Susan Eileen Friedman, based on the verified petition dated June 26, 2013; 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 the issues raised by the verified petition and any answer thereto are referred to the Honorable Kenneth A. Davis, 19 Harriet Drive, Syosset, N.Y. 11791, as Special Referee, to hear and report, including 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 within 20 days after service upon her of a copy of this decision and order on motion, the respondent, Susan Friedman Odery, admitted as Susan Eileen Friedman, shall serve a copy of her 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 if the respondent, Susan Friedman Odery, admitted as Susan Eileen Friedman, 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 her 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 uncontroverted evidence.

At a real estate closing on December 11, 2006, the respondent, her client, and her client's husband, executed an agreement, whereby the respondent agreed to hold, in escrow, a deed, transfer tax returns, and other transfer documents (hereinafter, collectively, the escrow documents), as well as funds sufficient to cover recording fees and transfer taxes (hereinafter the escrow funds), until certain issues were resolved in her client's matrimonial action. In accordance with the escrow agreement, the respondent received, on or about December 11, 2006, a check representing the amount required to cover the recording fees and transfer taxes, and on or about January 9, 2007, the respondent deposited the check in the her escrow account. In March 2007, the respondent's client, her client's husband, and their matrimonial attorneys authorized, the respondent to release the escrow documents and the escrow funds. However, the deed from the December closing was never recorded. On or about February 3, 2011, a second closing was held, a new deed and transfer documents were executed, and the respondent 's client incurred additional expenses.

The respondent's client, who asserted that she had been charged double for closing costs and attorney's fees, filed a complaint against the respondent, which was referred to the Nassau County Bar Association (hereinafter the Bar Association). In response to the Bar Association's inquiry, the respondent asserted that she forwarded the escrow documents and an escrow check to the attorney for her client's husband several months after the closing, but that the escrow check had not been negotiated. She also stated that in September 2008 she forwarded a "replacement check" no. 10176, to her client's husband's attorney. The respondent represented that a copy of the front of this "replacement check," payable to "Judicial Research," in the amount of $3,847.87, dated September 9, 2008, was enclosed with the response. The respondent also promised to determine what happened to the $3,847.87. The Bar Association, by letter dated February 28, 2012, dismissed the complaint, with several advisements on condition that, among other things, the respondent pursue a refund of the closing costs for her client.

Subsequently, the Grievance Committee asked the respondent to describe the steps she took to comply with the Bar Association's conditions. In a letter dated May 19, 2012, the respondent submitted an answer to the Grievance Committee in which she once again asserted, inter alia, that she delivered a "replacement check" no. 10176, to the attorney for her client's husband. She also asserted that she had attempted to obtain a refund and discussed the possibility of reimbursing her client, conditioned upon her receipt of an assignment to retain any refund of the closing costs she obtained.

By letter dated September 17, 2012, the Grievance Committee asked the respondent to provide copies of the front and back of the "replacement check." In response, by letter dated September 28, 2012, the respondent provided photocopies of the front and back of a check. The front of the check, which the respondent submitted, was identical to the front of the check previously submitted by the respondent to the Bar Association, that is, it contained number 10176, was dated September 9, 2008, and was payable to "Judicial Research," in the amount of $3,847.87. The back of the check contained no endorsement and was essentially blank.

On or about November 8, 2012, pursuant to a subpoena, the Grievance Committee received certified copies of the respondent's escrow account, which included the bank statement for September 2008, as well as photocopies of the front and back of check no. 10176. The September 2008 statement reflected that check no. 10176 was presented for payment, and honored, against the respondent's escrow account, on September 22, 2008. However, the front of the subpoenaed check was payable to "Susan E. Odery, Esq.," not "Judicial Research," and was dated September 19, 2008, not September 9, 2008. Moreover, the reverse of the subpoenaed check contained the endorsement "For Deposit Only" with a hand written bank account number that matched an account number for the respondent's personal account, and a signature similar to the respondent's signature. Subsequently, the Grievance Committee received, pursuant to subpoena, certified copies of a bank statement and deposit slip which reflected a deposit of $3,487.87 on September 19, 2008, into the respondent' s personal account bearing the same account number endorsed on the reverse of the subpoenaed copy of check no. 10176.

At an examination under oath at the offices of the Grievance Committee on February 21, 2013, the respondent continued to assert that she had sent the "replacement check" to the attorney for her client's husband. She denied that she had written the check that was deposited in her personal account.

The respondent has neither opposed the motion nor submitted any response relative thereto.

Based upon the foregoing, the motion is granted to the extent that the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(iii), pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against her, the matter is referred to a Special Referee, to hear and report, and the respondent is directed to answer within 20 days after service upon her of a copy of this decision and order on motion.

ENG, P.J., RIVERA, SKELOS, DILLON, and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court