Appellate Division: Second Judicial Department

M164067

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

LEONARD B. AUSTIN, JJ.

2012-05346 admitted as Michael John DeFilippo, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Michael J. DeFilippo, respondent. (Attorney Registration No. 2939320)

DECISION & ORDER ON MOTION In the Matter of Michael J. DeFilippo,

Motion by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts 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 in that he failed to submit a written answer to a complaint of professional misconduct. Application by the Grievance Committee for leave to serve and file a supplemental verified petition dated March 12, 2013, containing three additional charges. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 10, 1999. By decision and order on application of this Court dated December 31, 2012, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent based on a verified petition dated June 1, 2012, and the issues raised were referred to the Hon. Harry E. Seidell, as Special Referee, to hear and report.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the papers filed in support of the application, it is

ORDERED that the motion is granted, and pursuant to 22 NYCRR 691.4(l)(1)(i), the

respondent, Michael J. DeFilippo, admitted as Michael John DeFilippo, 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, Michael J. DeFilippo, admitted as Michael John DeFilippo, 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, Michael J. DeFilippo, admitted as Michael John DeFilippo, 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 application is granted, and the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts shall serve upon the respondent and the Special Referee and file with this Court the supplemental verified petition within 20 days after receipt of a copy of this decision and order on motion; and it is further,

ORDERED that within 20 days after service of the supplemental verified petition upon him, along with a copy of this decision and order on motion, the respondent, Michael J. DeFilippo, admitted as Michael John DeFilippo, shall serve an answer to the supplemental verified petition upon the petitioner and the Special Referee, and shall file the original answer in the office of the Clerk of this Court; and it is further,

ORDERED that the issues raised by the supplemental verified petition and any answer thereto are referred to the Honorable Harry E. Seidell, as Special Referee, to hear and report, together with the issues previously assigned on the same matter; and it is further,

ORDERED that if the respondent, Michael J. DeFilippo, admitted as Michael John DeFilippo, 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 on his failure to submit an answer to a complaint of professional misconduct.

On August 21, 2012, the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts received a complaint filed by Margaret Williams. The complaint alleged that the respondent was retained in January 2012 to complete basic estate planning and asset protection work. However, the respondent failed to complete the work, failed to refund any part of the fee, refused to return any of Wiiliams's documents, and failed to communicate with Williams's daughter.

In a letter dated August 30, 2012, the Grievance Committee sent the respondent a copy of the complaint and directed the respondent to submit a written answer within 10 days of his receipt of the letter. The letter, sent to an address on file with the Office of Court Administration, was returned by the United States Postal Service unopened. A second letter dated September 4, 2012, along with another copy of the complaint, was sent, via regular mail, by the Grievance Committee to the respondent's home address, which was provided at an examination under oath on July 13, 2012. The letter was not returned.

When the respondent failed to answer the complaint or request an extension of time, the Grievance Committee sent a third letter dated September 28, 2012, along with another copy of the complaint, which directed that a written answer be submitted within 10 days. The letter was sent, via first class mail as well as certified mail, return receipt requested, to a mailbox at a UPS Store, an alternative address provided by the respondent at his examination under oath. The return receipt card was returned to the Grievance Committee signed by an authorized UPS employee.

The respondent still did not answer or request additional time.

On November 2, 2012, a fourth letter was sent, via first class mail as well as certified mail, return receipt requested, to the respondent's home address and his alternative address at the UPS Store. The letters sent first class mail were not returned, but the certified mail letter sent to respondent's home address was returned with a label which read "RETURN TO SENDER UNCLAIMED UNABLE TO FORWARD." The certified mail letter to the UPS Store was not returned, but neither was the return receipt card.

On November 14, 2012, Grievance Committee Staff Counsel called the respondent to inquire about his answer to the Williams complaint. The respondent claimed that he had not received the complaint and requested that a copy be faxed to him. A copy was faxed to the respondent on the same day.

The respondent opposes the motion for his interim suspension and denies that he committed professional misconduct. He claims that he is suffering from various medical problems and is scheduled for surgery. According to the respondent, his doctor has instructed him to remain "as stress-free as possible," and that responding to the Grievance Committee would be "a major stressor." However, the respondent did not provide any medical support for his assertions. The respondent also stated in his opposition papers that he had completed Williams's work "many months ago" and that he would be delivering "the completed package to her . . . over the next ten days." He also stated that he would be responding to the Grievance Committee.

To date, the respondent has not submitted a written answer to the Williams complaint, nor has he provided proof that he delivered any package to Williams.

Based on the foregoing, the motion is granted, and the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), pending further order of the Court. Additionally, the application is granted and the Grievance Committee is authorized to file and serve the supplemental verified petition dated March 12, 2013.

ENG, P.J., MASTRO, RIVERA, SKELOS and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court