[Recalled and vacated, see 143 AD3d 24.]

Appellate Division: Second Judicial Department

M206767

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

MARK C. DILLON

RUTH C. BALKIN, JJ.

2015-11784 In the Matter of Bill Tsoumpelis, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Bill Tsoumpelis, respondent. (Attorney Registration No. 2615755)

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) 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 of professional misconduct set forth in a verified petition dated September 29, 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 First Judicial Department on April 11, 1994.

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, Bill Tsoumpelis, 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, Bill Tsoumpelis, 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, Bill Tsoumpelis, 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 Bill Tsoumpelis, based on the verified petition dated September 29, 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, 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 him of a copy of this decision and order on motion, the respondent Bill Tsoumpelis, 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 verified petition and any answer thereto are referred to Honorable Georgia Tschiember, 137 Sunken Meadow Road, Fort Salonga, NY, to hear and report, and to submit a report, which contains her 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, Bill Tsoumpelis, 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, and his failure to cooperate with the Grievance Committee in its investigation of multiple complaints of professional misconduct filed against him.

The instant motion emanates from an investigation by the Grievance Committee for the Tenth Judicial District of multiple complaints of professional misconduct. In 2014 and 2015, the Grievance Committee received 10 complaints of professional misconduct against the respondent from the following individuals: Thomas F. Laviano, Rochelle Surgan, Miles D. Carlisle, Delia A. Banos, Jose A. Pacheo and Roberina Pacheo, James Wang, Madelaine Timpa, Maria Sven Ruppaner, Candace Rosenthal, and Pinchas Kalantarov. The majority of the complaints alleged that the respondent neglected legal matters or failed to return fees or remit funds due to the client.

With respect to each of the complaints received by the Grievance Committee, the respondent was forwarded a copy of the complaint and directed to provide a written answer within 10 days of his receipt thereof. With the exception of Kalantarov, the Grievance Committee sent multiple letters to the respondent requesting a response to the complaint. Letters were sent first class mail, and, when no answers were received, certified letters were sent. In some instances, as many as 6 or 7 letters were sent. With the exception of Kalantarov, delivery was confirmed by signed acknowledgment. Of the 10 complaints, six were hand-delivered to the respondent, when no answers were forthcoming, at his place of residence on January 23, 2015, and the respondent acknowledged receipt of the complaints. The letters advised the respondent that failure to cooperate with the investigation constituted professional misconduct, independent of the underlying merits of the individual complaint. The letters also advised the respondent that the Grievance Committee was authorized to seek his immediate suspension from the practice of law if he failed to cooperate with the investigation.

Further, the respondent was personally served, on April 30, 2015, with: (1) a judicial subpoena duces tecum dated April 20, 2015, directing that he produce client files and certain bank records, with regard to 9 open investigations, by May 13, 2015; and (2) a judicial subpoena directing that he appear for examination on May 20, 2015.

The respondent failed to answer any of the 10 complaints, failed to produce any of the requested records, and failed to appear for examination, despite the numerous letters sent him and the subpoenas served on him.

The misappropriation of client funds allegation is based on the complaint of James Wang. In Spring 2014 Wang retained the respondent to assist in selling his home. The purchaser gave the respondent a down payment check dated July 5, 2014, made payable to him, as attorney, in the amount of $75,000. The respondent deposited the check into his escrow account at Citibank, entitled "Bill Tsoumpelis Attorney Trust Account," on July 8, 2014. In the next two weeks, the respondent issued three checks from his Citibank escrow account, which were unrelated to the Wang matter, leaving a balance in the escrow account, when the third check cleared, on July 22, 2014, of only $49,059.59, less than the $75,000 required to be maintained in connection with Wang matter.

In August 2014, the respondent for the first time issued two checks related to the Wang matter in the amounts of $36,688, and $14,157.74, respectively, from the Citibank escrow account. On August 28, 2014, when the second check cleared, the balance in the escrow account was only $3,893.69, leaving an unexplained shortfall of over $20,000 of the amount of money that was required to be maintained in connection with Wang matter.

On or about October 1, 2014, the respondent drafted check #129 from a Capital One bank account in his name, made payable to James Wang referenced as "Wang ... Escrow Release." The check contained a numeric entry of "$21,932" but was blank in the space where words were to be used to indicate the dollar amount. Wang was unable to present the check for payment. The respondent's bank records also reflect that the respondent deposited into his Capital One bank account on October 10, 2014, a check made payable to himself in the amount of $21,932, dated October 1, 2014, issued from another of his accounts, a mortgage closing account at Citibank. That check was apparently dishonored because the Capital One bank statement contains an entry for October 16, 2015, debiting the sum of $21,932 from the respondent's account with the notation "Chargeback Invalid Account." To date, Wang has not been paid the $21,932 owed him.

Although personally served with a copy of the motion on October 29, 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 misappropriation of client funds in the Wang matter; the respondent's failure to submit answers to any of the 10 complaints, despite countless letters sent to him and two judicial subpoenas personally served on him; and the respondent's prior disciplinary history, consisting of a public censure by this Court (Matter of Tsoumpelis, 88 AD3d 68), two Letters of Caution, and one Admonition.

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) 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.

We note that the respondent is currently delinquent in the payment of his attorney re-registration fees for the biennial period 2014-2015.

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

ENTER:

Aprilanne Agostino

Clerk of the Court