Appellate Division: Second Judicial Department

M192560

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON, JJ.

2015-00808 In the Matter of Lester Wayne Mackey, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Lester Wayne Mackey, respondent. (Attorney Registration No. 1944370)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District (1) to suspend the respondent from the practice of law, 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, (2) to authorize the institution and prosecution of a disciplinary proceeding against the respondent based upon the allegations set forth in a verified petition dated January 21, 2015, (3) to direct the respondent to submit an answer to the petition, and (4) 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 Fourth Judicial Department on June 28, 1984.

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),(ii), and (iii), the respondent, Lester Wayne Mackey, 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, Lester Wayne Mackey, 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, Lester Wayne Mackey, 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 Lester Wayne Mackey, based on the verified petition dated January 21, 2015; and it is further,

ORDERED that Mitchell T. Borkowsky, 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 within 20 days after service upon him of a copy of this decision and order on motion, the respondent, Lester Wayne Mackey, shall serve an answer upon the petitioner and the Special Referee, appointed herein, and shall file the original answer with this Court; and it is further,

ORDERED that the issues raised by the petition and any answer thereto are referred to John P. Clarke, 35 Broad Street, Williston Park, New York 11596, 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, Lester Wayne Mackey, 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 on his misappropriation of client funds; conduct involving dishonesty, fraud, deceit and misrepresentation; and failure to cooperate with the Grievance Committee in its investigation of multiple complaints of professional misconduct against him.

The instant application emanates from an investigation by the Grievance Committee for the Tenth Judicial District of multiple complaints of professional misconduct against the respondent. From February 2013 through August 2014, the Grievance Committee received six complaints of professional misconduct against the respondent.

Complaint of Patricia Gayle

On or about June 3, 2011, the respondent's client entered into a contract to sell a residence to Patricia Gayle. Pursuant to the contract of sale, Gayle tendered a $20,000 down payment check, payable to "Lester Mackey, as atty," which the respondent deposited in his attorney IOLA trust account on June 13, 2011. The contract of sale required the respondent to maintain the down payment in escrow "for the benefit of the parties" until the closing, or, sooner termination. On June 16, 2011, the respondent disbursed Gayle's $20,000 down payment to another, without Gayle's knowledge or consent. When Gayle was unable to obtain financing, she exercised her right under the contract to cancel the sale. Between July and October 2012, Gayle and/or her counsel repeatedly requested the return of the down payment, without response from the respondent. In October 2012, Gayle commenced an action in the Civil Court of the City of New York, Queens County against the seller, seeking return of the $20,000 down payment. After the seller defaulted, by order dated November 21, 2012, the Civil Court directed that Gayle's down payment, presently held in escrow by the respondent, be returned to her. Following Gayle's complaint to the Grievance Committee, in April 2013 the respondent issued a check in the sum of $20,000 from his attorney IOLA trust account to Gayle. Notwithstanding the respondent's prior statements to the contrary, during his examination under oath on October 23, 2014, he testified that he had not recovered the $20,000 that he had disbursed to another before paying Gayle. Thus, he admittedly used unrelated client funds on deposit in his attorney IOLA trust account to pay Gayle. The foregoing bank transactions relating to the respondent's deposit and unauthorized disbursement of the Gayle down payment, and his subsequent return of the $20,000 to Gayle, are evidenced by the respondent's attorney IOLA trust account bank records.

Complaint of Satya P. Gawrinauth

In or about September 2011, Satya P. Gawrinauth sought to purchase a residence located in South Ozone Park, New York, from the respondent's client. Pursuant to the contract of sale, Gawrinauth tendered a $50,000 down payment check, payable to "Lester Mackey, as attorney," which the respondent deposited into his attorney IOLA trust account on September 22, 2011. The contract of sale provided that the respondent was to maintain the down payment in escrow "for the benefit of the parties" until the closing, or, sooner termination. On September 28, 2011, the respondent executed a $40,000 wire transfer from his attorney IOLA trust account to an account belonging to a representative of the seller, without Gawrinauth's knowledge or consent. When the seller was unable to resolve numerous violations against the premises, Gawrinauth cancelled the contract and requested the respondent to return his down payment. The respondent failed to respond to Gawrinauth's requests. The foregoing bank transactions relating to the respondent's deposit and disbursement of the Gawrinauth down payment, are evidenced by the respondent's attorney IOLA trust account bank records.

Further, the respondent failed to cooperate with the Grievance Committee in the investigation of the Gawrinauth complaint. By letter dated February 19, 2014, the Grievance Committee notified the respondent that Gawrinauth had filed a complaint against him, and directed that he submit a written response within 10 days of his receipt of the letter. The respondent failed to respond to this initial letter and to a second letter from the Grievance Committee dated June 27, 2014. At his second examination under oath, the respondent was instructed to submit a written response to the complaint. To date, the respondent has failed to submit a written response to the Gawrinauth complaint.

Complaint of Peter Hilaire

In his complaint to the Grievance Committee, Peter Hilaire asserted that the respondent agreed to represent him in selling a residence owned by Hilarire to his daughter, Evelyn, for approximately $520,000. Due to credit and income issues, Evelyn was unable to obtain mortgage financing, and by agreement of the parties, Marcus Smith, who lived with Evelyn at the premises and was the father of her children, was substituted for Evelyn as the purchaser. On or about November 9, 2011, the respondent received a $29,250 down payment check from Smith, payable to "Lester Mackey, as Attorney," and deposited the check into his attorney IOLA trust account. On or about November 17, 2011, the respondent disbursed $12,225 of the down payment by executing two wire transfers from his attorney IOLA trust account for Smith's benefit.

The closing occurred on April 11, 2012, and Evelyn attended as the attorney-in-fact for Hilaire. At the closing, the respondent received the net proceeds of the sale in the sum of $65,180.48, by check payable to "Lester Wayne Mackey, Esq., as Attorney," which he deposited into his attorney IOLA trust account on April 11, 2012. On April 17, 2012, the respondent transferred $75,180.48 from his attorney IOLA trust account to "G and E Management, LLC, Elmont, NY," referenced as "Maurice Smith Closing."

After the closing, the respondent received from General Abstract Services (hereinafter GAS), the agent for the title insurance company, funds relating to the Hilare transaction in the sum of $4,025.77, by check made payable to "Lester Mackey, as Attorney." On June 25, 2012, the respondent deposited these funds into his attorney IOLA trust account. The respondent did not remit the $4,025.77 to Hilaire.

The foregoing bank transactions relating to the respondent's deposit and disbursement of the Hilaire sale proceeds, are evidenced by the respondent's attorney IOLA trust account bank records.

Hilaire did not receive any proceeds from the sale of his home, and the respondent has failed and refused to render an account to Hilaire for the proceeds of sale of his home.

Further, the respondent failed to cooperate with the Grievance Committee in the investigation of the Hilaire complaint. By letter dated July 19, 2013, the Grievance Committee notified the respondent that Hilaire had filed a complaint against him, and directed that he submit a written response within 10 days of his receipt thereof. The respondent failed to respond to this initial letter and to a second letter dated October 28, 2013. At his examinations under oath, the respondent was instructed to submit a written response to the complaint, but has failed to submit a written response.

Complaints of William Krolewicz, Bladimir Perez, and Derrick Hubbard

The respondent has failed to cooperate with the Grievance Committee in the investigation of the complaints filed by William Krolewicz, Bladimir Perez, and Derrick Hubbard. On April 2013, June 2014 and August 2014, the Grievance Committee notified the respondent of individual complaints filed by Krolewicz, Perez, and Hubbard, respectively, and requested that he submit a written answer to each complaint. Despite further requests for his response by the Grievance Committee, and the respondent's assurance during his examination under oath that he would submit a written response to each of the foregoing complaints by no later than November 30, 2014, to date the Grievance Committee has not received the respondent's written answer to the complaints filed by Krolewicz, Perez, and Hubbard.

Although personally served with a copy of the Grievance Committee's motion on January 28, 2015, the respondent has not submitted a response or requested additional time in which to do so.

We find that the respondent's immediate suspension is warranted in light of the evidence which shows repeated misappropriation of client funds, and the respondent's failure to submit written answers to five out of six complaints, and his substantial admission that he utilized unrelated escrow funds to satisfy the Gayle judgment.

Based on the foregoing, the Grievance Committee's motion is granted, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), (ii) 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.

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

ENTER:

Aprilanne Agostino

Clerk of the Court