Appellate Division: Second Judicial Department

M182175

E/ct

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON

JOHN M. LEVENTHAL, JJ.

2014-07047 In the Matter of Timothy G. Griffin, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Timothy G. Griffin, respondent. (Attorney Registration No. 1976430)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Ninth 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 timely respond to the lawful demands of the Grievance Committee 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 July 22, 2014; (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 that the respondent serve an answer to the petition upon the Grievance Committee and the Special Referee, and file the original with the Court, within 20 days of service of a copy of this decision and order on motion upon him. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on March 20, 1985, under the name Timothy G. Griffin.

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, Timothy G. Griffin, 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, Timothy G. Griffin, 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, Timothy G. Griffin, is commanded to desist and refrain from (1) practicing law in any form, either as principal or as 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 Ninth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Timothy G. Griffin, based on the verified petition dated July 22, 2014; and it is further,

ORDERED that Gary L. Casella, Chief Counsel, Grievance Committee for the Ninth Judicial District, 399 Knollwood Road, Suite 200. White Plains, N.Y., 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 Alfred J. Weiner, c/o Mandel, Katz and Brosnan, LLP, 210 Route 303, Valley Cottage, N.Y. 10989, 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 within 20 days after service upon him of a copy of this decision and order on motion, the respondent, Timothy G. Griffin, shall serve a copy of his answer to the petition upon the Grievance Committee and the Special Referee, and file the original with the Clerk of the Court; and it is further,

ORDERED that if the respondent, Timothy G. Griffin, 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 Ninth Judicial District and other uncontroverted evidence of professional misconduct.

Background

On February 6, 2014, the respondent was indicted in the Supreme Court, Richmond County, on charges of grand larceny in the first degree (one count) and grand larceny in the second degree (six counts), in connection with his alleged theft of more than one million dollars from the United Hebrew Cemetery. After his arraignment, the respondent posted bail and is not presently incarcerated. On February 7, 2014, the Attorney General commenced an action against the respondent in the Supreme Court, Richmond County, pursuant to CPLR article 13-A, seeking forfeiture of "proceeds, substituted proceeds and instrumentalities of the criminal activity committed by him, and a money judgment equivalent in value." On February 12, 2014, the Attorney General notified the Grievance Committee of the respondent's indictment in the United Hebrew Cemetery matter. However, the Grievance Committee was not advised regarding the existence and/or status of the forfeiture action. Moreover, unbeknownst to the Grievance Committee, on February 19, 2014, the Attorney General attached and removed the entire $305,756.93 balance then on deposit in the "Timothy G. Griffin, Attorney at Law - Attorney Special" account at Citibank (Account No. XXXXXX8720), as part of the civil forfeiture. On that same date, pursuant to prior standing authorization, the Grievance Committee opened a file for purposes of "tracking" the forgoing criminal case. Pursuant thereto, the Grievance Committee forwarded a letter to the respondent, advising him that he should "immediately notify" them of any developments in the matter. The letter dated February 19, 2014 was directed to the respondent at the office address registered with the New York State Office of Court Administration (hereinafter OCA) via certified mail, return receipt requested. The return receipt was returned to the Committee on February 27, 2014, bearing the signature of "M. DeVito."

According to the Assistant Attorney General handling the respondent's criminal prosecution, neither discovery, motions, nor hearings had been completed as of mid-June 2014, although plea negotiations were ongoing. Since being notified of the respondent's indictment, the Grievance Committee has received multiple complaints against him from one or more individuals or businesses, all of which were involved in transactions involving the respondent, as attorney, and money deposited in escrow. Many of these parties, as well as the United Hebrew Cemetery, moved to intervene in the forfeiture proceeding. The respondent has made no effort to oppose either the Attorney General's application for forfeiture or the efforts of potential interveners in that action. The Grievance Committee's investigation into the foregoing matters has revealed additional evidence of serious professional misconduct by the respondent.

Complaint of Peter Signori

On April 2, 2014, the Grievance Committee received a complaint of professional misconduct against the respondent from Peter Signori, the President of the Board of Directors of Eastbourne Apartments, Inc. (hereinafter Eastbourne). The complaint alleged that, as the result of the settlement of a personal injury action and a related declaratory judgment action, the respondent deposited the sum of $7,500 from Eastboune's insurer into the "Timothy G. Griffin - Attorney at Law, Attorney Special Account," no. XXXXXX8720 at Citibank, on November 27, 2013, and the respondent deposited the sum of $47,500 from Eastbourne into the same account on January 9, 2014. However, according to the Signori complaint, in the nearly six weeks that elapsed between January 13, 2014, and the Attorney General's removal of the funds from that account on February 19, 2014, the respondent failed to release any of the funds required to satisfy the settlement to the plaintiff in the personal injury action.

Complaint of Lili Doleh

On or about May 27, 2014, the Grievance Committee received a complaint from Lili Doleh. The complaint alleged that in June 2013, Doleh, the owner of 498 Red Food Corp. (hereinafter Red Food), borrowed the sum of $120,000 from 161-163 Rockaway Avenue, LLC, for use in Red Food's purchase of the Red Hook Meat Corp. (hereinafter Red Hook), an entity represented by the respondent. On or about June 13, 2013, pursuant to the purchase agreement, 161-163 Rockaway Avenue, LLC, issued its check no. 1005, in the sum of $120,000, payable to the order of "Timothy G. Griffin, As Attorney," to be held in escrow pending completion of the purchase. According to bank records obtained by the Grievance Committee, the respondent received and deposited the sum of $120,000 into the "Timothy G. Griffin, Attorney at Law - Attorney Special Account," No. XXXXXX2808 at Citibank a different account than the one used in the Signori transaction. The Red Hook transaction did not close and the respondent's client was unable to perform in accordance with the terms of the contract, and eventually filed for bankruptcy in the United States District Court for the Eastern District of New York. On or about September 26, 2013, the respondent issued check no. 1138, in the amount of $10,000, payable to himself, from Attorney Special Account No. XXXXXX2808. The memo line of the check reads "RED HOOK." The Grievance Committee asserts that the disbursement was unauthorized at any point prior to February 14, 2014, and constituted a misappropriation of fiduciary funds by the respondent. By letter dated February 14, 2014, Doleh terminated the purchase agreement, and demanded the return of the $120,000 previously deposited with the respondent. By "Stipulation and Agreed Order" dated March 28, 2014, the Bankruptcy Court voided the contract between Red Food and Red Hook, and ordered that the $120,000 previously tendered to the respondent be returned. However, Doleh has been unable to collect or otherwise recover any of the $120,000 tendered to the respondent for Red Food's proposed purchase of Red Hook.

Complaint of Dwight McGuirk

On June 6, 2014, the Grievance Committee received a complaint of professional misconduct against the respondent from Dwight McGuirk. The complaint alleged that Dwight McGuirk and his brother were the trustees of the Helen A. McGuirk Revocable Trust (hereinafter the trust), which owned real property located at 29 Milburn Street, Bronxville, New York. On September 15, 2013, the trustees entered into a contract, on behalf of the trust, to sell that real property to John DeLuca. The trust was represented in that transaction by the respondent, while DeLuca was represented by Michael J. Kistner. The contract called for a sale price of $500,000, and required a down payment of $50,000, payable upon execution of the contract. The down payment was in the form of two checks payable to "Timothy Griffin, As Attorney," one check, in the amount of $40,0000, and another in the amount of $10,000. Both checks were deposited by the respondent into the "Timothy G. Griffin - Attorney at Law, Attorney Special Account" (no. XXXXXX8720) at Citibank, as part of a larger deposit of $407,657.12, which the respondent used to open that account on October 19, 2013. The complaint further alleged that the respondent received a JP Morgan Chase Bank cashier's check, payable to "Law Offices of Timothy G. Griffin" in the agreed-upon amount of $156,001.97 at the closing of title on February 7, 2014,when the deed to the property was conveyed to DeLuca. Bank records confirm the respondent's deposit of $156,001.97 that same day into the "Timothy G. Griffin - Attorney at Law, Attorney Special Account" (no. XXXXXX8720) at Citibank, for a total escrowed amount of $206,001.97 ($50,000 plus $156,001.97). However, during the period of time between that deposit and the seizure by the Attorney General of the funds in Attorney Special Account no. XXXXXX8720, the respondent failed to remit or otherwise transfer any part of the $206,001.97 to the trust. The trust has been unable to collect the money due to it since that time.

Complaint of Bart Lansky, Esq. O/B/O Syed Kirmani

On July 2, 2014, the Grievance Committee received a complaint against the respondent from attorney Bart Lansky, on behalf of his client, Syed Kirmani. In sum and substance, the complaint alleged that, on or about October 25, 2013, Kirmani entered into a contract for the purchase of a gas station owned by Jimzo Garden Apartments, Inc. (hereinafter JIMZO), which was represented by the respondent. On or about October 28, 2013, Kirmani tendered to the respondent the sum of $146,250 to be held in escrow in the form of two checks one check in the amount of $80,000, and a second check in the amount of $66,250. According to the Grievance Committee, records for the respondent's Attorney Special Account(s) confirm that the entire $146,250 was deposited by the respondent into the Timothy G. Griffin - Attorney at Law, Attorney Special Account no. XXXXXX8720 at Citibank on October 30, 2013. On Friday, February 11, 2014, the day prior to the scheduled closing, Lansky and Kirmani learned that the respondent had been arrested. On February 20, 2014, Lansky and Kirmani also learned that the entire balance on deposit in the "Timothy G. Griffin - Attorney at Law, Attorney Special Account" no. XXXXXX8720 at Citibank including the $146,250 tendered by Kirmani had been frozen and withdrawn by the Attorney General, as part of the forfeiture action.

Complaint of Karen Levine

On or about July 3, 2014, the Grievance Committee received a complaint of professional misconduct against the respondent from Karen Eisenman Levine, which Levine filed in her individual capacity, and as executrix of her late mother's estate. The complaint alleged that Levine's mother died on August 19, 2013, leaving a Last Will and Testament dated January 11, 2010, and Levine retained the respondent to help her "process [the] estate." Levine paid the respondent $5,000 in September 2013, and $2,500 in December 2013, for a total fee of $7,500. Thereafter, the respondent failed to return any of Levine's phone calls or status inquiries. In April 2013, Levine retained new counsel. The complaint alleged that no estate proceedings were commenced in Surrogate's Court, and the respondent failed to respond to requests for an accounting of the services he ostensibly provided. Moreover, the complaint also alleged that the respondent failed to account for the money that Levine's mother paid him for legal services he ostensibly provided in connection with a 2009 foreclosure action commenced against her.

The Respondent's Failure to Cooperate

The Signori complaint was forwarded to the respondent, via regular mail, at the office address registered with the Office of Court Administration. When the respondent failed to answer, a follow-up letter was forwarded to him, via certified mail, return receipt requested, to the same address. The return receipt was returned to the Grievance Committee signed by "M. DeVito." To date, the respondent has failed to respond; request an adjournment; or communicate with the Grievance Committee regarding the Signori complaint.

Similarly, the Doleh complaint was forwarded to the respondent via United Parcel Service (hereinafter UPS) Overnight Mail, and First Class United States Postal Service (hereinafter USPS) mail, on May 30, 2014. UPS tracking confirmed that the overnight mail was delivered to the office address registered with the OCA on June 2, 2014, at 10:30 A.M., where it was signed for by an individual named "Marrone." The First Class USPS mail was not returned to the Grievance Committee. To date, the respondent has failed to respond, to request an adjournment, or to communicate with the Grievance Committee regarding the Doleh complaint.

The McGuirk complaint also was forwarded to the office address registered with the OCA by UPS Ground mail, and First Class USPS mail, on June 12, 2014. UPS tracking confirmed that the overnight mail was delivered to the respondent's registered office address on June 13, 2014, at 10:34 a.m., where it was signed for by "DeVito." The First Class USPS mail was not returned to the Committee. To date, the respondent has failed to respond, request an adjournment, or communicate with the Committee regarding the McGuirk complaint.

The Kirmani complaint and the Levine complaint were forwarded to the respondent on July 8, 2014, but he has failed to respond.

The Grievance Committee's Investigation

The Grievance Committee obtained bank records for the two accounts, each captioned "Timothy Griffin, Attorney at Law Special Account," and maintained at Citibank, nos. XXXXXX2808 and XXXXXX8720, respectively, from complainants McGuirk and Doleh, and pursuant to a subpoena duces tecum. The bank records for account no. XXXXXX2808 revealed that, in addition to the unauthorized $10,000 disbursement from the Doleh escrow account on September 26, 2013, the respondent negotiated two checks payable to himself from that escrow account, one check dated June 27, 2013, in the sum of $7,500, and the other dated July 2, 2013, in the sum of $5,000. Moreover, on or about October 8, 2013, the respondent issued check no. 1240, in the amount of $357,657.12, from account no. XXXXXX2808, containing the notation on the memo line, "Transfer Due to Fraud," representing the entire balance on deposit in that account, including the Douleh escrow, and as noted above, deposited the check in account no XXXXXX8720.

The Grievance Committee asserts that "no other record or indication of any other disbursement for any of the matters underlying the instant complaints was found in the records examined" and that "[t]he respondent was . . . obligated to be holding the . . . aggregate amount of [the complainants'] deposits at all times described herein." However, the actual balances on deposit in the escrow accounts during the period that the respondent was to have been holding funds for Signori, Douleh, McGuirk, and Kirmani was insufficient on at least 94 days of the 246-day period from June 18, 2013, through February 19, 2014. In addition, the bank records reflect that the respondent drew the following checks totaling $62,500, payable to himself, from account no. XXXXXX8720, without any explanatory note in the memo line: October 31, 2013 $17,500; November 5, 2013 $ 5,000; December 2, 2013 $20,000; January 10, 2014 $10,000; January 31, 2014 $ 7,500; and February 7, 2014 $ 2,500.

Although the respondent was personally served with this motion on July 24, 2014, and his responsive papers were due to be served by August 27, 2014, he has neither answered nor requested an extension of his time to do so.

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 him, the matter is referred to a Special Referee, to hear and report, and the respondent is directed to serve and file an answer to the petition, if any, within 20 days after service upon him of a copy of this decision and order on motion.

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

ENTER:

Aprilanne Agostino

Clerk of the Court