Appellate Division: Second Judicial Department

M176581

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

PLUMMER E. LOTT, JJ.

2014-02737 In the Matter of Rudolph R. D'Amato, admitted as Rudolph Ronald D'Amato, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Rudolph R. D'Amato, respondent. (Attorney Registration No. 1502194)

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) and (iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate with lawful demands of the Grievance Committee in connection with an investigation into his professional conduct and other uncontroverted evidence of professional misconduct; (2) to authorize the institution and prosecution of a disciplinary proceeding against the respondent based upon a verified petition dated December 20, 2013; (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; and (4) 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 14 Anchor Way, Port Washington, N.Y. 11050, and by mailing said documents to the respondent at this same address by both regular 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 Second Judicial Department on January 31, 1979, under the name Rudolph Ronald D'Amato.

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) and (iii), the respondent, Rudolph R. D'Amato, admitted as Rudolph Ronald D'Amato, 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, Rudolph R. D'Amato, admitted as Rudolph Ronald D'Amato, 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, Rudolph R. D'Amato, admitted as Rudolph Ronald D'Amato, 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 Rudolph R. D'Amato, admitted as Rudolph Ronald D'Amato, based on the verified petition dated December 20, 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 Arthur Cooperman, 115-23 Grosvenor Road, Kew Gardens, N.Y. 11417, as Special Referee, to hear and report, and to submit a report, which contains his 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 14 Anchor Way, Port Washington, N.Y. 11050, and mailing said documents to the respondent at this same address by both regular first class and certified mail, return receipt requested; and its is further,

ORDERED that within 20 days after service upon him of a copy of this decision and order on motion the respondent, Rudolph R. D'Amato, admitted as Rudolph Ronald D'Amato, shall serve a copy of his answer to the petition upon the Grievance Committee and the Special Referee, and file the original answer with the Court; and it is further,

ORDERED that if the respondent, Rudolph R. D'Amato, admitted as Rudolph Ronald D'Amato, 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 lawful demands of the Grievance Committee for the Tenth Judicial District, and other uncontroverted evidence of professional misconduct.

The instant motion emanates from the Grievance Committee's receipt of a complaint against the respondent, which was filed by Michael P. Berkley, Esq., in February 2011, on behalf of Anya Fitschen, great niece of Winifred Binstead, who passed away in 2005, at the age of 100. Ms. Fitschen and her siblings became entitled to the residuary of Ms. Binstead's estate, upon the death of their mother, several weeks after Ms. Binstead's death. According to the complaint, Ms. Binstead's assets, which were expected to be substantial, had been dissipated by the respondent, from at least 2001 until Ms. Binstead's death, while he had been Ms. Binstead's attorney-in-fact, and after Ms. Binstead's death, while he was the sole executor of her estate. The complainant wanted, at a minimum, an accounting, and an explanation from the respondent, relative to Ms. Binstead's assets.

In or about December 2008, the complainant filed an application with the Surrogate's Court, Nassau County, to compel the respondent to produce financial records relative to Ms. Binstead's assets. Based upon a partial accounting provided by the respondent, the complainant asserted that from 2001 through 2007, the respondent spent almost $1.5 million of Ms. Binstead's assets, including nearly $900,000 which the respondent was unable to account for and which did not appear to benefit Ms. Binstead. The complainant alleged, further, that the respondent had commingled Ms. Binstead's assets with his personal assets, had misappropriated Ms. Binstead's assets, and had failed to provide a complete and accurate accounting of Ms. Binstead's assets.

By letter dated February 18, 2011, sent via regular mail, the Grievance Committee provided the respondent with a copy of the complaint, and asked the respondent to submit a written answer within 10 days. Although the letter was not returned, no answer was received.

By letter dated March 9, 2011, sent via regular mail and certified mail, return receipt requested, the respondent was provided with a copy of the Grievance Committee's February 18, 2011, letter. He was advised that his failure to respond or otherwise cooperate with the Grievance Committee constituted professional misconduct independent of the merits of the underlying complaint, and he was asked to submit a written answer within 10 days. Although the letter sent via certified mail, return receipt requested, was delivered, and the letter sent via regular mail was not returned, no answer was received.

By letter dated March 29, 2011, sent via regular mail and certified mail, return receipt requested, the respondent was provided with copies of the Grievance Committee's February 18, 2011, and March 29, 2011, letters. The respondent was advised that the Grievance Committee was authorized to seek his immediate suspension from the practice of law if he failed to cooperate with its investigation, and he was asked to submit a written answer, as well as an explanation for his failure to cooperate, within 10 days.

On or about April 5, 2011, the respondent submitted a written answer wherein he denied all allegations of wrongdoing. He advised that his actions as attorney-in-fact and as executor would be "subject to a full adversarial proceeding" before the Surrogate's Court, Nassau County, and that he shortly would be filing, with the Surrogate's Court, his accounting as attorney-in-fact. The respondent failed to provide any explanation for his failure to timely cooperate with the Grievance Committee's inquiries.

Upon receipt of the respondent's answer, the Grievance Committee advised the complainant and the respondent that its investigation would be held in abeyance, based upon the ongoing Surrogate's Court proceedings.

Subsequently, the Surrogate's Court found the respondent to be in contempt, based upon his failure to file an accounting in proper form with respect to his actions as attorney-in-fact, and provided him with an opportunity to purge the contempt, by filing a proper accounting and petition for judicial settlement of the accounting. However, the respondent failed to file the accounting in proper form, and, by order dated January 27, 2012, the Surrogate's Court directed that limited letters of administration be issued to the Public Administrator for the purpose of taking, and stating, the account of the respondent as attorney-in-fact for Ms. Binstead. On February 6, 2013, the Public Administrator of Nassau County submitted an accounting on behalf of the respondent as attorney-in-fact for the period from January 1, 2001, through December 31, 2005, which showed, among other things, that Ms. Binstead's assets in bank accounts and securities accounts totaled slightly over $1 million at the beginning of the account period, and that the respondent refinanced Ms. Binstead's residence in 2004. As a result of the accounting, by citation dated February 19, 2013, the respondent was directed to show cause why he should not be directed to pay a sum exceeding $1.1 million to the Public Administrator or why judgment should not be issued against him for that amount, and why the preliminary letters testamentary issued to the respondent should not be revoked.

Moreover, records submitted by the respondent in connection with the Surrogate's Court proceeding reflected that on January 4, 2010, more than four years after Ms. Binstead's death, the respondent opened an estate account at Capital One Bank, in the amount of $47,319.70 funded by a transfer from a CitiBank account in the name of the respondent's mother. Also, in a petition for judicial settlement of account, dated June 7, 2010, the respondent asserted that the Binstead estate's only asset at the time of Ms. Binstead's death was her house, which he sold on January 19, 2007, and that the only estate asset as of the time of the account was a Capital One Bank account with a balance of $45,280.

Based upon the Public Administrator's accounting, and the additional records submitted by the complainant, the Grievance Committee resumed its investigation.

By letter dated June 19, 2013, sent via regular mail, the respondent was notified that the Grievance Committee had resumed its investigation, and he was asked to contact them, within 10 days, to arrange for an examination under oath (hereinafter EUO). Although the letter was not returned, the respondent failed to answer.

By letter dated July 5, 2013, sent via regular mail and certified mail, return receipt requested, the respondent was provided with a copy of the June 19, 2013 letter. The respondent was advised that his failure to respond or otherwise cooperate with the Grievance Committee constituted professional misconduct, independent of the merits of the underlying complaint, and he was asked to contact the Grievance Committee within 10 days to schedule an EUO. Although the letter sent via certified mail was returned "unclaimed," the letter sent via regular mail was not returned. Nonetheless, the respondent failed to answer.

By letter dated July 23, 2013, sent via regular mail and certified mail, return receipt requested, the respondent was provided with copies of the Grievance Committee's June 19, 2013, and July 5, 2013, letters. He was advised that the Grievance Committee was authorized to seek his immediate suspension from the practice of law for failing to cooperate, and was asked to arrange for an EUO within 10 days, as well as provide an explanation for his failure to cooperate. Although the letter sent via certified mail was returned "unclaimed," the letter sent via regular mail was not returned. Nonetheless, the respondent failed to answer.

On August 1, 2013, a judicial subpoena dated July 26, 2013, directing the respondent to appear at the Grievance Committee's offices on September 5, 2013, was served on the respondent's mother, at the respondent's registered address, to wit, 14 Anchor Way, Port Washington, N.Y. 11050. A copy of the subpoena also was sent to the respondent via regular mail, together with a letter dated August 1, 2013, to his registered address. The August 1, 2013, letter was returned "undelivered." Nonetheless, despite the subpoena having been served at the respondent's registered address, he failed to appear on September 5, 2013, as directed.

Meanwhile, by order dated July 18, 2013, the Surrogate's Court, Nassau County, revoked the letters testamentary previously issued to the respondent, as executor of the estate of Winifred Binstead, stating that the respondent "did not comply with an order to file his accounts as attorney-in-fact" and "did not execute[] his office with the honesty required of a fiduciary."

Subsequently, the bank records for the estate's Capital One Bank account were subpoenaed and submitted to the Surrogate's Court, and to the Grievance Committee. The records reflected that the respondent issued 58 checks from the account payable to himself, from June 23, 2010, through May 20, 2013, totaling $30,975, and that the estate account had a balance of $16,611.19 as of May 23, 2013.

Based upon the foregoing, the Grievance Committee moved, by order to show cause dated January 21, 2014, inter alia, to suspend the respondent from the practice of law, and this Court directed that service upon the respondent be effected on or before February 21, 2014. Despite the Grievance Committee's diligent efforts, all attempts at service of the order to show cause, and the accompanying petition, were unsuccessful. Subsequently, the Grievance Committee made this motion by order to show cause with a provision for alternative service, and the order to cause was successfully served.

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) and (iii), pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent based upon the verified petition dated December 20, 2013, the matter is referred to a Special Referee, to hear and report, and, pursuant to Judiciary Law § 90(6), 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 14 Anchor Way, Port Washington, N.Y. 11050, and by mailing said documents to the respondent at this same address by both regular first class and certified mail, return receipt requested.

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

ENTER:

Aprilanne Agostino

Clerk of the Court