Appellate Division: Second Judicial Department

M187219

E/ct

WILLIAM F. MASTRO, J.P.

REINALDO E. RIVERA

MARK C. DILLON

RUTH C. BALKIN

L. PRISCILLA HALL, JJ.

2014-09140 In the Matter of Frank Adipietro, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Frank Adipietro, respondent. (Attorney Registration No. 2307957)

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 has been guilty of professional misconduct immediately threatening the public interest based upon his failure to comply with the lawful demands of the Grievance Committee in its investigation of 11 complaints of professional misconduct filed against him, 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 September 22, 2014; and (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. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court Second Judicial Department on December 13, 1989.

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, Frank Adipietro, 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, Frank Adipietro, 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, Frank Adipietro, 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 Frank Adipietro, based on the verified petition dated September 22, 2014; and it is further,

ORDERED that Mitchell T. Borkowsky, Chief Counsel to 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 within 20 days after service upon him of a copy of this decision and order on motion, the respondent, Frank Adipietro, 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 Arthur J. Cooperman, 110-11 Queens Boulevard, #10H, Forest Hills, N.Y. 11375, 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, Frank Adipietro, 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 has been guilty of professional misconduct immediately threatening the public interest based upon his failure to comply with the lawful demands of the Grievance Committee for the Tenth Judicial District in its investigation of 11 complaints of professional misconduct filed against him, and other uncontroverted evidence of professional misconduct.

Background

The proposed petition, which was served with the Grievance Committee's motion, contains 31 charges of professional misconduct alleging that the respondent has been guilty of conduct prejudicial to the administration of justice by failing to respond to the lawful demands of the Grievance Committee (11 counts); conduct reflecting adversely on his fitness as a lawyer based upon the foregoing (1 count); failing to promptly pay or deliver to a client or third person funds in his possession the client or third person was entitled to receive (4 counts); misappropriating funds entrusted to him as a fiduciary (3 counts); neglecting a client's legal matter (6 counts); and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation (6 counts).

Discussion

The respondent's practice appears to focus predominantly on representing individuals in connection with vehicle and traffic violations and, to a lesser extent, general criminal matters. At all times hereinafter mentioned, the respondent has maintained an office at 100 Main Street, #96A, Hempstead, N.Y. 11550, across from the Nassau County Traffic and Parking Violations Bureau. He resides in the town of Monroe, in upstate New York.

Between June 2012 and July 2014, the Grievance Committee received complaints against the respondent from 11 present and former clients. Upon initial screening, the first six complaints were referred to the Nassau County Bar Association, either for fee conciliation or for mediation, as, in large part, each complaint, concerned a request for a refund from, or an apparent mis-communication with, the respondent. In early 2014, the Nassau County Bar Association returned those six matters to the Grievance Committee, having been unable to secure responses from the respondent, despite numerous letters seeking his cooperation. Upon the return of those matters, efforts were undertaken by the Grievance Committee to secure the respondent's cooperation in those matters, as well as, five additional complaints against the respondent, which were received in the interim. However, the respondent completely ignored, and/or failed to respond to, the Committee's correspondence.

The subject complaints reveal a pattern of misconduct by the respondent. Specifically, there is an underlying allegation, throughout the complaints, that the respondent lied to his clients about the status or disposition of their cases, and "misrepresented" the status of a legal matter, in order to "placate" or "stonewall" the client(s). In several instances, the respondent is alleged to have expressly advised the clients that their matters were resolved, when, in fact, no work had been performed. Other complaints allege that the respondent, despite numerous assurances, failed to refund unearned fees, or remit funds to which clients were ostensibly entitled. The matters are as follows:

The Iori Complaint

Complainant Iori retained the respondent relative to a criminal matter. Despite repeated assurances that money due Iori would be refunded (i.e., $875), same has not occurred.

The Jackson Complaint

Complainant Jackson retained the respondent to resolve several outstanding judgments. Jackson paid the respondent a fee and was advised by the respondent that "everything had been taken care of." However, Jackson alleges that "absolutely nothing" had been done.

The Carona Complaint

Complainant Carona retained the respondent on behalf of her son, in February 2010. Thereafter, despite repeated assurances that, among other things "the check [was] in the mail." Carona asserted that the respondent was just giving her "the run around."

The Fils Complaint

Complainant Fils retained the respondent relative to a criminal matter. After paying the respondent over $2,000, the respondent "lied" about the disposition of the case, leading Fils to believe that it had been resolved. In fact, a warrant had been issued for Fils's arrest. Fils only learned about the warrant months later, when he was called home from work by his wife, while a marshal stood at the door.

The Lahori Complaint

Complainant Lahori retained the respondent following a traffic arrest. Thereafter, the respondent misled Lahori into believing that the matter had been resolved when, in fact, Lahori's license to drive actually had been suspended for failure to appear.

The Raitses Complaint

Complainant Raitses retained the respondent following a traffic arrest, and paid the respondent $2,000. The respondent failed to appear for a hearing and, among other things, gave Raitses "false information" about the status of the matter, such as that Raitses had to complete 35 hours of community service. In fact, no such disposition actually had been made. Raitses also alleged that he performed "hours" of community service and that another attorney resolved the case.

The St. Louis Complaint

Complainant St. Louis retained the respondent following a traffic arrest. After several months, the respondent advised St. Louis that the case was "thrown out" but that a "court fee" of $1,156 was due. St. Louis paid $1,156 to the respondent at that time. Subsequently, St. Louis learned that there was a warrant for his arrest. Upon returning to court, the respondent advised St. Louis to plead guilty, and to pay another "court fee" of $1,156. St. Louis paid $1,156 to the respondent, and received three years' probation, along with three years' ignition interlock. The respondent lied to St. Louis by telling St. Louis that his license was not suspended, and that he did not have to report to probation. St. Louis asserted that his money was "stole[n]," and that the respondent "misrepresented" the status of his case to him.

The Okhio Complaint

Complainant Okhio retained the respondent following a traffic arrest. The respondent initially received, inter alia, $1,500 in fees and $1,000 for court costs. Although the respondent subsequently gave Okhio repeated assurances that the matter was resolved, Okhio's bail refund was not returned to him, and a warrant was issued for his arrest. Subsequently, Okhio was incarcerated in an unrelated matter and the respondent received an additional $10,000 to resolve that matter and $8,000 to be placed in escrow. Okhio asserted that, among other things, the respondent failed to comply with his instructions to withdraw a plea agreement and failed to refund his money.

The Impellizzieri Complaint

Complainant Impellizzieri retained the respondent to recover funds from a former business partner. However, the respondent neglected the matter, lied about the status of the case, and failed to remit the settlement proceeds, despite numerous promises that he would do so. To that end, Impellizzieri recounted an instance in which the respondent, having finally been corralled, asked Impellizzieri to accompany him to the bank to get the funds, only to have the respondent run away and hide.

The Antonopoulos Complaint

Complainant Antonopoulos retained the respondent relative to a criminal matter. The respondent repeatedly assured Antonopoulos that the matter was "resolved and closed," when, in fact, it was not. As a result of the respondent's deceit, a warrant was issued for Antonopoulos's arrest. When Antonopoulos was finally sentenced, the respondent failed to appear, despite having been paid.

The Banjany Complaint

Complainant Banjany allegedly retained the respondent to recover $21,000 lost through fraud. Although the respondent remitted $7,000 to Banjany, the balance of funds remained outstanding, despite repeated assurances from the respondent that the funds would be paid.

Attempts to Elicit the Respondent's Cooperation

Having completely ignored and/or failed to respond to all correspondence, the respondent was served, on July 31, 2014, with a judicial subpoena dated July 21, 2014, directing him to appear at the Grievance Committee's office on Friday, August 8, 2014, at 10:00 A.M., for an examination under oath (hereinafter EUO). On Thursday, August 7, 2014, at 3:30 P.M., the respondent contacted the Grievance Committee, by telephone, to request an adjournment of his appearance, purportedly due to a closing scheduled for 2:00 P.M. the following day in Monroe, New York. This was the respondent's first communication with the Grievance Committee since it initiated its investigation. The respondent's request for an adjournment or, alternatively, an agreement that the EUO would be concluded by 12:00 P.M., was denied, and the respondent was directed to appear as commanded by the subpoena.

On August 8, 2014, the respondent appeared at the Grievance Committee's office, professing a desire to fully cooperate with the investigation. He acknowledged on the record that each of the foregoing 11 complainants was either a client, or a relative of a client. However, he did not testify further concerning the complaints. Rather, he requested an adjournment to retain counsel. According to the respondent, he had contacted an attorney by telephone that morning, and intended to meet with the attorney later that day. On that basis, the Committee agreed to adjourn the EUO until August 13, 2014. Inasmuch as the respondent had arrived at the EUO empty-handed, copies of the 11 complaints were provided to him.

By letter dated August 8, 2014, mailed to the respondent's office, the Grievance Committee advised the respondent that the adjourned EUO would proceed on August 13, 2014, whether or not counsel had been retained.

On August 13, 2014, the respondent appeared at the office of the Grievance Committee without counsel. He advised that the attorney he initially contacted was a friend of his, who was unfamiliar with grievance proceedings, and who declined to represent him. Although his friend provided him with the names of other attorneys who practice in the area of attorney discipline, the respondent did not contact them. Nonetheless, the respondent requested a further adjournment to retain counsel. His request was denied.

During his EUO, the respondent acknowledged receiving every letter mailed to him by the Nassau County Bar Association and the Grievance Committee. He admitted that he knew what they were, and that he failed to respond. When asked to explain his failure to cooperate, the respondent could not offer an excuse. He asserted that the letters were placed in a drawer, sometimes unopened. Nonetheless, he professed, again, his intention to fully cooperate with the Grievance Committee's investigation.

The respondent once again arrived empty handed, but for the copies of the 11 complaints previously provided to him. He was directed to submit written answers to each of the 11 complaints no later than August 20, 2014. The respondent promised to hand deliver his answers on August 20, 2014.

On August 20, 2014, the respondent appeared at the Grievance Committee's office without written answers to the 11 complaints. He advised that his review of the same indicated that, for the most part, they concerned unearned fees, and that he would return the next day with checks for the clients.

On August 21, 2014, the respondent once again appeared at the Grievance Committee's office. He had what purported to be written answers, dated August 20, 2014, for two complaints (i.e., the Iori complaint and the Lahori complaint). However, rather than address the substantive allegations, the respondent merely apologized for not resolving those two matters in a timely manner, and produced two money orders, in the amounts of $875 and $300, respectively. The respondent's intention was to have the Grievance Committee forward the money orders to the complainants. However, the respondent was advised that it was his responsibility to remit the funds, and the money orders were returned to him. The respondent stated that he would send the money orders to complainants Iori and Lahori. While it appears that complainant Iori has not received the $875 money order from the respondent, to date, complainant Lahori has advised the Committee that he received the $300 money order.

Despite his repeated verbal assurances that he intended to cooperate with the Grievance Committee, the respondent, in fact, has continued his previous pattern of stonewalling, misrepresentation, and deceit. To date he has failed to provide written answers to nine complaints filed against him. Accordingly, in addition to the respondent's failure to cooperate, the underlying allegations of professional misconduct are uncontroverted.

By letter dated November 13, 2014, the respondent, via counsel, advised the Court that no opposition to the instant motion would be submitted, despite an extension of 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; and the matter is referred to a Special Referee, to hear and report.

MASTRO, J.P., RIVERA, DILLON, BALKIN and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court