Appellate Division: Second Judicial Department

M184804

E/ct

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON

LEONARD B. AUSTIN, JJ.

2014-05996 In the Matter of Dov Barry Wenger, admitted as Dov B. Wenger, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Dov Barry Wenger, respondent. (Attorney Registration No. 3040938)

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), (ii), and (iii), 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, substantial admissions under oath that he committed acts of professional misconduct, and other uncontroverted evidence of professional misconduct; (2) to authorize the institution and prosecution of a disciplinary proceeding based upon the allegations set forth in a verified petition dated June 16, 2014; and (3) to refer the issues raised to a Special Referee, to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on June 20, 2001.

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 to suspend the respondent Dov Barry Wenger, admitted as Dov B. Wenger, pending the consideration of charges of professional misconduct is granted to the extent that pursuant to 22 NYCRR 691.4(l)(1)(i), the respondent, Dov Barry Wenger, admitted as Dov B. Wenger, is immediately suspended from the practice of law in the State of New York, pending further order of the Court, and that branch of the motion is otherwise denied; and it is further,

ORDERED that the respondent, Dov Barry Wenger, admitted as Dov B. Wenger, 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, Dov Barry Wenger, admitted as Dov B. Wenger, 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 branches of the motion which are to authorize the institution and prosecution of a disciplinary proceeding and to refer the issues raised to a Special Referee, appointed herein, are granted, and the Grievance Committee for the Ninth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Dov Barry Wenger, admitted as Dov B. Wenger, based on the allegations contained in the verified petition dated June 16, 2014; and it is further,

ORDERED that Gary L. Casella, Chief Counsel, Grievance Committee for the Ninth Judicial District, Crosswest Office Center, 399 Knollwood Road, Suite 200, White Plains, N.Y. 10603, is hereby appointed as attorney for the petitioner in such proceeding; 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, Dov Barry Wenger, admitted as Dov B. Wenger, shall serve a copy of his answer to the petition upon the Grievance Committee and the Special Referee, appointed herein, and file the original with the Court; and it is further,

ORDERED that the issues raised by the verified petition and any answer thereto are referred to the Honorable Jerome Becker, c/o Douglas Becker, Esq., 9 East 40th Street, 8th Floor, New York, N.Y. 10016, 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 if the respondent, Dov Barry Wenger, admitted as Dov B. Wenger, 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.

On November 7, 2012, the Grievance Committee received a complaint of professional misconduct from Martin Reisman and Faigy Reisman, which alleged that the respondent was entrusted with $250,000 by the Reismans to invest in recycling operations in the Dominican Republic. The Reismans contend that the respondent did not use their money to "secure" shares in two companies that were engaged in the recycling operations, or refund their money. By letter dated November 15, 2012, the Grievance Committee provided the respondent with a copy of the Reismans' complaint, and requested that he submit a written response within 10 days. Although the letter was not returned as undelivered, no answer was received.

By letter dated June 10, 2013, sent via certified mail, return receipt requested, the Grievance Committee asked the respondent to produce bank and bookkeeping records relating to his attorney escrow account, along with an answer to the Reismans' complaint. On or about June 11, 2013, the respondent requested, and received, a two week extension, until June 25, 2013, to submit a response. However, the respondent failed to submit his answer to the Grievance Committee.

On or about July 17, 2013, the Grievance Committee sent an email to the respondent seeking, inter alia, his answer to the Reismans' complaint, and the production of the previously requested bank and bookkeeping records. Subsequently, the respondent sent an email to the Grievance Committee, in which he claimed that the subject documents were contained in an attachment, but the attachment could not be opened.

By letter dated August 22, 2013, sent via regular mail, and delivered by hand on August 28, 2013, together with a judicial subpoena, the Grievance Committee requested, inter alia, that the respondent identify the source of funds on deposit in his attorney IOLA Trust account no. XXXXXX7817 maintained at Chase Bank (hereinafter the IOLA account) as of January 30, 2010, the names of clients or third parties whose money he was holding at that time, and the purpose of the deposit(s). The respondent also was requested to provide the corresponding deposits for various disbursements he made to himself from the IOLA account for the period February 2010 through September 2010. Although the respondent was asked to submit his response to the Grievance Committee by September 4, 2013, he failed to do so.

On September 30, 2013, the respondent appeared at the Grievance Committee's office for an examination under oath (hereinafter EUO) and submitted a written answer to the Reismans' complaint. However, the respondent failed to provide the aforementioned information and records relating to his IOLA account. At his continued EUO on October 28, 2013, the respondent partially complied with the Grievance Committee's request for records, by producing his IOLA bank statements but did not provide additional records. Notwithstanding the Grievance Committee's repeated requests, the respondent has failed, to date, to fully comply with the requests of the Grievance Committee for records and information in connection with his IOLA account.

We find that the respondent has effectively obstructed the Grievance Committee's investigation by failing to provide the information necessary to identify the source of the funds on deposit in his IOLA account and the corresponding deposits for disbursements he made to himself therefrom, as well as to make available to the Grievance Committee the bank and bookkeeping records for his IOLA account, as requested.

Although he was personally served with the motion, and made a written request for and received an adjournment of the motion's return date, the respondent has neither opposed the motion nor otherwise submitted a response.

Based upon the foregoing, pursuant to 22 NYCRR 691.4(l)(1)(i), the respondent is immediately suspended from the practice of law for his failure to cooperate with the lawful demands of the Grievance Committee, pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent, based on the verified petition dated June 16, 2014, and the matter is referred to a Special Referee, to hear and report.

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

ENTER:

Aprilanne Agostino

Clerk of the Court