Appellate Division: Second Judicial Department

M190445

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

SYLVIA O. HINDS-RADIX, JJ.

2014-07821 In the Matter of Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, an attorney and counselor- at-law. Grievance Committee for the Tenth Judicial District, petitioner; Nancy P. Enoksen, respondent. (Attorney Registration No. 4326625)

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 her pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), upon a finding that she is guilty of professional misconduct immediately threatening the public interest based upon her failure to comply with 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 December 16, 2014; and (3) to refer the issues raised by the charges set forth in the verified petition and any answer thereto 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 July 27, 2005, under the name Nancy Patricia Enoksen.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the branch of the motion which is to suspend the respondent, Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, pending consideration of the charges of professional misconduct against her is granted to the extent that pursuant to 22 NYCRR 691.4(l)(1)(i), the respondent, Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, is immediately suspended from the practice of law in the State of New York based upon her failure to comply with the lawful demands of the Grievance Committee for the Tenth Judical District, pending further order of the Court, and that branch of the motion is otherwise denied; and it is further,

ORDERED that the respondent, Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, 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, Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, 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 herself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that the branch of the motion which is to authorize the institution and prosecution of a disciplinary proceeding is granted, and the Grievance Committee for the Tenth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding against the respondent, Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, based upon the verified petition dated December 16, 2014; and it is further,

ORDERED that Mitchell T. Borkowsky, Chief Counsel of the Grievance Committee for the Tenth Judicial District, 150 Motor Parkway, Suite 102, Hauppauge, NY 11788, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that within 20 days after service upon her of a copy of this decision and order on motion, the respondent, Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, shall serve a copy of her answer to the verified 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 branch of the motion which is to refer the issues raised to a Special Referee is granted, and the issues raised by the verified petition and any answer thereto are referred to the Honorable Kenneth A. Davis, 19 Harriet Drive, Syosset, N.Y. 11791, 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, Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, 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 her 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 her failure to cooperate with the lawful demands of the Grievance Committee for the Tenth Judicial District.

On or about May 27, 2014, the Grievance Grievance Committee received a complaint from Lisa Elfante, dated May 22, 2014, alleging that the respondent, without authorization, withdrew a portion of funds she was holding on behalf of Ms. Elfante. By letter dated May 30, 2014, sent via regular mail, the Grievance Committee advised the respondent of the initiation of an investigation based upon Ms. Elfante's complaint, and the Grievance Committee asked the respondent to submit a written answer to the allegations within 10 days of her receipt of the letter. No answer was received from the respondent. By further letter dated June 18, 2014, sent via certified mail, return receipt requested, the Grievance Committee again requested that the respondent submit a written answer to the allegations made by Ms. Elfante, within 10 days of her receipt of the letter. Postal records reflect that the letter dated June 18, 2014, was accepted for delivery on June 19, 2014. No answer was received from the respondent.

On July 24, 2014, a judicial subpoena issued by the Clerk of the Court on July 21, 2014, directing the respondent to appear at the Grievance Committee's office on July 31, 2014, and subpoena duces tecum also issued on July 21, 2014, directing that the respondent produce her files in this matter, along with her bank and bookkeeping records on that same date, were served upon the respondent's legal assistant at the respondent's law office. In addition, copies of the subpoenas were mailed to the respondent. On July 30, 2014, the respondent left a voice mail message for Grievance Committee counsel, in which she stated that she could not appear on July 31, 2014, inasmuch as she was having surgery. By letter dated July 30, 2014, the Grievance Committee advised the respondent that the return date of the subpoenas would be adjourned to August 12, 2014. The letter further requested that, on or before August 8, 2014, the respondent submit a letter from her physician as evidence of her inability to appear at the Grievance Committee office on July 31, 2014, due to her surgery. In addition, the Grievance Committee advised the respondent that if she was unable to appear on August 12, 2014, she had to submit, prior to that date, a letter from her physician setting forth the specific medical reasons for her inability to comply with the subpoenas. The letter dated July 30, 2014, was personally served upon the respondent's legal assistant at the respondent's law office. The respondent neither answered the letter dated July 30, 2014, appeared at the Grievance Committee's office on August 12, 2014, nor provided medical documentation as requested.

On September 3, 2014, the respondent was personally served with a judicial subpoena issued by the Clerk of the Court on August 18, 2014, directing her to appear at the Grievance Committee's office, and a subpoena duces tecum also issued on August 18, 2014, directing her to produce her files and records, on September 11, 2014. By letter dated September 4, 2014, the respondent requested that the return date of the subpoenas be adjourned due to her medical condition. By letter dated September 10, 2014, the Grievance Committee consented to an adjourned date of October 1, 2014. The respondent, however, was advised that the Grievance Committee would not consent to any further adjournments in the absence of medical documentation evidencing her inability to appear on October 1, 2014. The letter dated September 10, 2014, was personally served on the respondent's adult son, at the respondent's home, on September 11, 2014. In addition, a copy of the letter was sent to the respondent via certified mail, return receipt requested. However, the certified letter was returned "unclaimed." The respondent neither appeared at the Grievance Committee's office on October 1, 2014, nor provided any documentation regarding her medical condition.

The respondent opposes the instant motion, averring that she ought not be suspended, pending further proceedings, in the absence of an "intentional" failure to cooperate with the Grievance Committee or uncontroverted evidence of professional misconduct demonstrating that she poses an "immediate threat to the public," pursuant to 22 NYCRR 691.4(i)(1)(l) or (iii). The respondent asserts, inter alia, that she communicated with the Grievance Committee in an effort to adjourn her examinations under oath, as a result of medical conditions that rendered her unable to appear. Moreover, she avers that the allegations made against her are "false." However, the respondent does not deny that she failed to provide the Grievance Committee with medical documentation, as requested. Indeed, no medical documentation was submitted with her opposition papers.

Based upon the foregoing, pursuant to 22 NYCRR 691.4(l)(1)(i), the respondent is immediately suspended from the practice of law for her 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 based on the verified petition dated December 16, 2014, and the matter is referred to a Special Referee, to hear and report.

ENG, P.J., MASTRO, RIVERA, SKELOS and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court