Appellate Division: Second Judicial Department

M196499

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

MARK C. DILLON

SYLVIA O. HINDS-RADIX, JJ.

2014-08028 In the Matter of Elliott Bakst, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Elliott Bakst, respondent. (Attorney Registration No. 1245042)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts (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)(ii) and (iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest based upon substantial admissions under oath 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 August 25, 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 March 25, 1959.

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

ORDERED that the motion is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), the respondent, Elliott Bakst, 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, Elliott Bakst, 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, Elliott Bakst, 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 Second, Eleventh, and Thirteenth Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Elliott Bakst, based on the verified petition dated August 25, 2014; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel, Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Renaissance Plaza, 335 Adams Street, Brooklyn, New York 11201, 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, Elliott Bakst, 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, Elliott Bakst, 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 substantial admissions under oath and other uncontroverted evidence of professional misconduct.

The instant application emanates from an investigation by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts of multiple complaints of professional misconduct filed against the respondent.

Complaint of Robert Manfredo

On September 13, 2013, the Grievance Committee received a complaint of professional misconduct against the respondent from Robert Manfredo. The complaint alleged that in October 2011, Manfredo entered into a contract on behalf of his corporation to purchase property located at 434A Marion Street, Brooklyn, New York, from the respondent's client. Pursuant thereto, the respondent received a $5,000 down payment check payable to him, "as escrowee," which he was required to hold, in escrow. In January 2012, Manfredo's attorney notified the respondent that Manfredo was exercising his right to terminate the contract, and requested that the respondent return the down payment. The respondent failed to do so, or to otherwise respond. Manfredo subsequently sued the respondent in Civil Court, City of New York, for the return of the $5,000 contract deposit. On August 31, 2012, the respondent and Manfredo's attorney entered into a stipulation of settlement, so-ordered by the Honorable Andrea Masley, by which the respondent agreed to remit $5,000 on or before November 1, 2012, and, failing that, "consent[ed] to [the plaintiff's corporation] entering a default judgment against [him] for $5,000 plus interest from January 5, 2012 at 9%." The respondent did not remit $5,000 as agreed and, on or about June 13, 2013, a judgment was entered against him, which judgment remains unsatisfied.

On September 16, 2013, the Grievance Committee sent a letter to the respondent enclosing a copy of the Manfredo complaint and directing him to provide a written answer within 10 days. The respondent submitted a written answer, dated October 12, 2013, in which he denied the allegations in the complaint. He claimed he "had no knowledge of any sale," and that he "did not use any money."

While the back of the negotiated down payment check for $5,000 appeared to bear the respondent's signature, there was no information regarding where the check was deposited. The Grievance Committee subpoenaed bank records and, in a letter dated November 5, 2013, the bank responded that the check was deposited into account no. xxxx8749, entitled "Elliott Bakst, Esq. (Attorney Fee Escrow Account)."

On November 19, 2013, the respondent appeared at the Grievance Committee's office for an examination under oath (hereinafter EUO). At the EUO, the respondent testified that he had no connection to Manfredo's real estate transaction. However, the respondent acknowledged that he appeared in the action that Manfredo brought against him, that he entered into the aforementioned stipulation of settlement, that he did not pay $5,000 to Manfredo, as agreed, and that he has not satisfied the judgment that Manfredo entered against him.

The respondent denied that he received, signed, or endorsed the $5,000 down payment check, claiming, "It appears to be a signature, but I never make that sloppy in the back." The respondent claimed that he entered into the stipulation settling Manfredo's case against him because he "didn't think [he] could win the case," and he "made a calculated thing to pay it and get rid of it so [he] didn't have any problems." Upon being shown the bank letter dated November 5, 2013, the respondent said he was "caught . . . by surprise" and claimed that he did not "remember having [Manfredo's] check or putting it anywhere." The respondent testified that his account no. xxxx8749 is a "business account."

In November 2013, the Grievance Committee subpoenaed, inter alia, bank statements, deposited items, and cancelled checks relative to "Elliott Bakst, Attorney Fee Escrow Account," no. xxxx8749, for the period from October 2, 2011, to the present. The bank records reflect, inter alia, that the respondent used the account for personal purposes, including the deposit of social security benefits, legal fees, and other personal funds. The October 2011 bank statement, and accompanying records, show that on October 7, 2011, the respondent deposited the Manfredo $5,000 down payment check into the aforesaid account. The records also reflect that, prior to depositing the down payment check, the balance on deposit in the account was only $1.32, and that the balance increased to $5,001.32, before the respondent withdrew $1,000, by ATM, later that same day, leaving a balance on deposit in the account of only $4,001.32. Four days later, the respondent withdrew $3,980, leaving a balance on deposit in the account of only $21.32.

The respondent appeared for a second EUO at the Grievance Committee's office on January 23, 2014. Upon being provided with a copy of the subpoenaed bank records for account no. xxxx8749, the respondent testified that he was "surprised" that the records showed that the $5,000 down payment check had been deposited into his account, inasmuch as he did not remember depositing it, and "never was involved with that deal." The respondent also denied that he signed an October 11, 2011, withdrawal ticket for $3,980, claiming, "I don't sign like this, this crazy one (indicating)."

Complaint of Matthew Ahdoot

In September 2013, the Grievance Committee received a complaint of professional misconduct from Matthew Ahdoot. The complaint alleged that in October 2011, Ahdoot entered into a contract to purchase property located at 119-38 197 Street, St. Albans, New York, from the respondent's client. Pursuant to that contract, the respondent received a $5,000 down payment check from Ahdoot, payable to the respondent, "as attorney," which he was required to hold in escrow until closing or the termination of the contract. In August 2013, Ahdoot's attorney sent a letter to the respondent, by certified mail, requesting that he return the $5,000 down payment inasmuch as the respondent's client had sold the property to a third party. The respondent failed to return the $5,000 down payment, or to otherwise respond.

On September 26, 2013, the Grievance Committee sent the respondent a letter, enclosing a copy of the Ahdoot complaint, and directing him to provide a written answer within 10 days. On October 10, 2013, the Grievance Committee received an undated answer from the respondent, in which he denied Ahdoot's allegations, and claimed he had "no knowledge of any sale," and he "never used the money."

At his EUO in November 2013, the respondent denied any involvement in the Ahdoot transaction, and claimed that he never received, or endorsed, Ahdoot's down payment check. Referring to the back of Ahdoot's check, which indicates that it was endorsed by the respondent, and that it was negotiated by him at Pay-O-Matic, in Brooklyn, the respondent claimed, "I don't sign so sloppy and it's not my signature . . . This big thing, I never in a million years would do, this big thing," referring to the "t" in his surname. The respondent emphatically denied that he negotiated Ahdoot's check at Pay-O-Matic, stating, "I definitely don't go to cash those types of checks."

The Grievance Committee subpoenaed Pay-O-Matic, seeking identification records from at or about the time Ahdoot's check was negotiated, for any account information for the respondent. Pay-O-Matic's records for a "transaction date" on October 8, 2011, include copies of Ahdoot's unendorsed check, a photograph of the respondent labeled "transaction picture," a photograph of the respondent labeled "sign up picture," the respondent's New York State driver license labeled "customer ID," and "customer sign up information," which contained a Social Security Number for the respondent.

At the respondent's second EUO, on January 23, 2014, he once again insisted that did not endorse Adhoot's check, and had "absolutely not" brought it to Pay-O-Matic to be cashed. When the respondent was shown the subpoenaed records from Pay-O-Matic, he acknowledged that the photos were of him, that the driver's license was his, and that the "customer sign up information" included his Social Security Number. Nonetheless, the respondent testified, "I don't know how they got this, but it doesn't change anything . . . I can't explain it." He insisted that he "did not do anything with the check because [he] never got it."

The respondent denied that he has any mental or physical disability, or that he was under the influence of any kind of medication which would affect his thought process. He also denied that he was under the influence of alcohol.

The Respondent's Attorney Trust Account

In or about October 2013, the Grievance Committee obtained a so-ordered subpoena for the records of the respondent's account no. xxxx8239, entitled "Elliott Bakst, Attorney Trust Account," for the period from October 1, 2011, to the present. On or about December 12, 2013, the bank produced those records, which show that between December 1, 2011, and September 10, 2013, the respondent made 20 ATM withdrawals, and 4 cash withdrawals from that attorney trust account. The respondent acknowledged that Citibank account no. xxxx8239 is his attorney trust or escrow account, that he has an ATM card for the account, and that he has made ATM withdrawals from the account. The respondent further admitted that he does not maintain a ledger book or similar record of deposits into, and withdrawals from, his attorney trust account, as required by the Rules of Professional Conduct.

The Respondent's Failure to Re-Register as an Attorney

By letter dated September 23, 2013, the Grievance Committee advised the respondent that it had commenced an investigation, sua sponte, based upon his alleged failure to re-register as an attorney with the Office of Court Administration (hereinafter the OCA), for the 2012-2013 biennial registration period. He was directed to submit an answer within 10 days, and to provide evidence that he had re-registered within 45 days. On or about October 4, 2013, the respondent submitted an undated answer in which he promised to "take care of it." By letter dated March 19, 2014, the Grievance Committee advised the respondent that, inasmuch as the OCA had no record that he had re-registered, as promised, he was required to do so forthwith. To date, the respondent has failed to re-register as an attorney with the OCA for the 2012-2013 biennial registration period, as well as the 2014-2015 biennial registration period.

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)(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, DILLON and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court