Appellate Division: Second Judicial Department

M177032

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

L. PRISCILLA HALL, JJ.

2014-02655 In the Matter of Mitchell S. Ross, an attorney and counselor-at-law Grievance Committee for the Tenth Judicial District, petitioner; Mitchell S. Ross, respondent. (Attorney Registration No. 1976166)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District (1) to suspend the respondent from the practice of law p ursuant to 22 NYCRR 691.4(l)(1)(i) pending further order of this Court 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 in its investigation of a complaint of professional misconduct against him; (2) to authorize the institution and prosecution of a disciplinary proceeding against the respondent based upon the allegations of professional misconduct set forth in a verified petition dated March 12, 2014; (3) to direct, pursuant to Judiciary Law § 90(6), that service of a copy of this decision and order on motion and any future papers in this proceeding may be effectuated upon the respondent by affixing said documents to the front door of the respondent's address at 1979 Marcus Avenue, #210, New Hyde Park, N.Y. 11042, and mailing said documents to the respondent at the same address by first class and certified mail, return receipt requested. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Third Judicial Department on March 26 1985.

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), the respondent, Mitchell S. Ross, is immediately suspended from the practice of law in the State of New York, pending further order of this Court; and it is further,

ORDERED that the respondent, Mitchell S. Ross, 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, Mitchell S. Ross, 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 Mitchell S. Ross, as respondent, based on the verified petition dated March 12, 2014; and it is further,

ORDERED that Robert A. Green, Chief Counsel of the 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 Georgia Tschiember, 137 Sunken Meadow Road, Fort Salonga, N.Y. 11768, as Special Referee, to hear and report, and to submit a report, which contains her findings on the issues, within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda; and it is further,

ORDERED that service of a copy of this decision and order on motion, and any future papers in this proceeding may be effectuated upon the respondent by affixing said documents to the front door of the respondent's address at 1979 Marcus Avenue, #210, New Hyde Park, N.Y. 11042, and mailing said documents to the respondent at the same address by first class and certified mail, return receipt requested; 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, Mitchell S. Ross, shall serve a copy of his verified 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, Mitchell S. Ross, 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.

On June 27, 2013, the Grievance Committee received a complaint from Daniel J. Brownstein, alleging that the respondent had engaged in professional misconduct with respect to a real estate transaction wherein Mr. Brownstein represented the seller of real property, and the respondent allegedly represented the potential purchaser.

By letter dated July 9, 2013, sent via regular mail to the respondent's office address then on file with the Office of Court Administration (hereinafter OCA), the Grievance Committee informed the respondent that it had commenced an investigation into his alleged professional misconduct, and requested that he submit a written answer to the Brownstein complaint within 10 days. Although the letter was not returned, the respondent failed to answer.

By letter dated August 5, 2013, sent, via certified mail, return receipt requested, to the respondent's office address then on file with OCA, the Grievance Committee provided him with a copy of its letter dated July 9, 2013, and again requested that he submit a written answer to the Brownstein complaint within 10 days. Although postal records reflect that the letter was accepted for delivery, no answer was received.

By letter dated September 30, 2013, sent, via certified mail, return receipt requested, to the respondent's office address then on file with OCA, the Grievance Committee provided him with copies of their letters dated July 9, 2013, and August 5, 2013, and again requested that he provide a written answer to the Brownstein complaint within 10 days. Although postal records reflect that the letter was accepted for delivery, no answer was received.

By letter dated November 22, 2013, sent, via certified mail, return receipt requested, to the respondent's office address then on file with OCA, the Grievance Committee provided him with copies of their letters dated July 9, 2013, August 5, 2013, and September 30, 2013, and demanded a written answer to the Brownstein complaint, pursuant to 22 NYCRR 691.4(l)(1)(i), within 10 days. Although postal records reflect that the letter was accepted for delivery, no answer was received.

As a result of the respondent's failure to answer the Grievance Committee's letters, a judicial subpoena and subpoena duces tecum were obtained, directing the respondent to appear at the Grievance Committee's office on January 30, 2014, for an examination under oath and produce his file related to the subject real estate transaction. However, the Grievance Committee's diligent efforts to personally serve the subpoenas upon the respondent were unavailing. Accordingly, service of the subpoenas was effectuated by delivery to a receptionist at the respondent's office address then on file with OCA, and by mailing copies of the subpoenas to the same address. The respondent neither appeared at the office of the Grievance Committee, as directed by the judicial subpoena, nor provided the documents requested by the subpoena duces tecum.

To date, the respondent has failed to provide an answer to the complaint filed against him by Daniel J. Brownstein, failed to communicate with the Grievance Committee, and failed to appear and/or provide documents as directed by subpoenas.

The respondent has neither opposed the motion, nor interposed any other response.

Based upon the foregoing, (1) the motion is granted, (2) 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, (3) the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent based upon the verified petition dated March 12, 2014, (4) the matter is referred to a Special Referee to hear and report, and (5) pursuant to Judiciary Law § 90(6), service of a copy of this decision and order on motion, and any future papers in the proceeding may be effectuated upon the respondent by affixing said documents to the front door of the respondent's address at 1979 Marcus Avenue, #210, New Hyde Park, N.Y. 11042, and mailing said documents to the respondent at the same address by first class and certified mail, return receipt requested.

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

ENTER:

Aprilanne Agostino

Clerk of the Court