Appellate Division: Second Judicial Department

M209036

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

MARK C. DILLON

JOHN M. LEVENTHAL, JJ.

2016-00366 In the Matter of Arnab Bhukta, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Arnab Bhukta, respondent. (Attorney Registration No. 4659470)

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 is guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate 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 the allegations of professional misconduct set forth in a verified petition dated December 7, 2015; 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 May 6, 2009.

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)(i) and (iii), the respondent, Arnab Bhukta, 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, Arnab Bhukta, 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, Arnab Bhukta, 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 Arnab Bhukta, based on the verified petition dated December 7, 2015; 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, 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, Arnab Bhukta, 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, Apt 10H, Forest Hills, NY 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, Arnab Bhukta, 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 failure to cooperate with the lawful demands of the Grievance Committee and other uncontroverted evidence of professional misconduct.

The instant motion emanates from an investigation by the Grievance Committee for the Tenth Judicial District of multiple complaints of professional misconduct filed against the respondent.

The Respondent's Failure to Cooperate

The Hutter Complaint

Susan Hutter filed a complaint, dated November 19, 2013, alleging that the she and her husband had retained the respondent to recover damages for personal injuries sustained in a car accident in April 2012, and that the respondent failed to respond to her status inquiries.

On or about December 11, 2013, the Grievance Committee referred the Hutter complaint to the Nassau County Bar Association Grievance Committee (hereinafter the NCBAGC) for investigation. By letter dated March 28, 2014, the respondent submitted a written answer to the Hutter complaint acknowledging, inter alia, that he was retained by Hutter and her husband but denying that he had received any inquiries about the claim from them. According to the respondent, the claim was still open, and he was trying to resolve the matter without litigation. He stated that he planned to commence an action "within the next couple months" if the claim was not settled.

Thereafter, the respondent failed to respond to inquiries from the NCBAGC for additional information and documentation. On or about August 27, 2014, the Hutter complaint was returned to the Grievance Committee for the Tenth Judicial District for further investigation. By letter dated September 15, 2014, the Grievance Committee advised the respondent that the Hutter complaint had been returned to it due to his failure to cooperate with the NCBAGC, and requested that he provide additional information and documentation within 10 days. The respondent failed to respond.

A second request was made by letter dated November 7, 2014, sent by both regular mail and certified mail, return receipt requested. The respondent failed to retrieve the certified mail despite two notices being left for him. Only the letter sent by certified mail was returned to the Grievance Committee. Although the respondent was asked to submit his response within 10 days, he failed to do so.

The Dishonored Check Complaint

In November 2014, the Grievance Committee was notified by the Lawyers' Fund for Client Protection (hereinafter the LFCP), that check no. 1031 in the amount of $1,000, issued from the respondent's JPMorgan Chase Bank N.A. account No. xxxxxx3639 (hereinafter the IOLA account), had been dishonored on October 14, 2014, due to insufficient funds.

Prior to being notified that an investigation had been commenced, the respondent sent a letter dated November 19, 2014, to the Grievance Committee, which claimed that the LFCP notice was issued in error, as the $1,000 check was paid in full. The respondent alleged that the subject check had "somehow hit the banking system twice." The respondent provided a letter from a JPMorgan Chase Branch Manager, which stated that the subject "check was paid with sufficient funds on 10/14/2014 and was inadvertently reported returned in error." By letter dated December 9, 2014, the Grievance Committee notified the respondent that an investigation had been initiated based upon the dishonored IOLA check, and requested that he produce copies of his bank and bookkeeping records in connection with his IOLA account, as required by Rule 1.15 (i) and (j) of the Rules of Professional Conduct, within 20 days of his receipt thereof. The respondent failed to comply.

A second request was made by letter dated February 19, 2015, sent by both regular mail and certified mail, return receipt requested. The respondent failed to claim the certified mail, despite two notices being left for him. Only the letter sent by certified mail was returned to the petitioner. Although the respondent was asked to submit his response within 10 days, he failed to do so.

The Lee Complaint

The Grievance Committee received a complaint dated November 20, 2014, from John Lee. Lee retained the respondent to represent his company in a civil action. Lee alleged that the respondent was "supposed to turn in a judgment appeal for us but he never did." Lee further alleged that the respondent "did not show up to the judgment hearing on February 11, 2014 and our case got disposed and we have a 6 digit judgment against us."

By letter dated December 16, 2014, the Grievance Committee provided the respondent with a copy of the Lee complaint, and requested his written response within 10 days. No response was received from the respondent.

A second request was made by letter dated February 19, 2015, sent by both regular and certified mail, return receipt requested. Only the letter sent by certified mail was returned to the petitioner. Although the respondent was asked to submit his response to the Lee complaint within 10 days, he failed to do so.

Examination Under Oath

On March 12, 2015, the respondent was personally served with a judicial subpoena and judicial subpoena duces tecum commanding his appearance at the office of the Grievance Committee on March 25, 2015, and directing him to produce the Hutter legal file.

After several adjournments, on May 14, 2015, the respondent appeared, with counsel, for an examination under oath (hereinafter the EUO), but he failed to produce the Hutter legal file. By letter dated May 14, 2015, personally delivered to the respondent at the EUO, the Grievance Committee reiterated its demand for a copy of the Hutter legal file, including, but not limited to, his retainer agreement, correspondence with the clients and with the insurance company, any documents filed with court, and any medical records obtained, together with an explanation for his failure to timely cooperate with the petitioner. Concerning the dishonored check complaint, in a separate letter also dated May 14, 2015, the Grievance Committee demanded the previously requested bank and bookkeeping records. Lastly, with respect to the Lee complaint, Grievance Counsel made an oral demand for a written answer, together with any supporting documentation. This request was confirmed in a letter dated May 15, 2015, sent to the respondent's counsel.

The Calabrese Complaint

On June 10, 2015, less than one month after the respondent's EUO, the Grievance Committee received a complaint from Carla Calabrese, who retained the respondent, in or around February 2009, to represent her in a personal injury matter. After many years, Calabrese received a letter dated October 7, 2014, from the defendant's insurance carrier, which indicated that her matter had been settled for $8,000. When Calabrese questioned the respondent about the settlement, he claimed that her insurance company had placed a "hold" on the settlement proceeds, and that she would have her money by January 2015. Calabrese never received any settlement funds, and the respondent failed to return her repeated further inquiries.

By letter dated June 29, 2015, the respondent was notified of the Calabrese complaint by the Grievance Committee, and was asked to submit a written response within 10 days. The respondent failed to reply.

A second request for the respondent's answer to the Calabrese complaint was made by letter dated July 30, 2015, sent by certified mail, return receipt requested, to the respondent at both his business address and home address. Only the letter sent by certified mail to the respondent's business address was returned to the petitioner. The respondent failed to submit a response.

A third request was made by letter dated September 25, 2015, sent by both regular mail and certified mail, return receipt requested, to the respondent at both his business address and home address. The respondent was provided with a copy of the Grievance Committee's previous letters dated June 29, 2015, and July 30, 2015, and a demand was made that he submit forthwith his written answer, together with an explanation for his failure to timely cooperate. The respondent failed to claim the letters sent by certified mail, despite two notices being left for him. Only the letters sent by certified mail were returned to the petitioner. The respondent failed to submit a response.

Uncontroverted Evidence of the Misappropriation of Client Funds

The Grievance Committee alleges that the respondent misappropriated the Calabrese settlement funds. In support the Grievance Committee provided the bank records relative to the respondent's IOLA account, obtained from JP Morgan Chase Bank, N.A., pursuant to subpoena. The IOLA account records reflect that the respondent deposited the $8,000 Calabrese settlement check on October 14, 2014, made two cash withdrawals the following day totaling $4,900, and issued five checks within two weeks of the deposit totaling $3,070. None of the foregoing disbursements were made to Calabrese and from her complaint it can be inferred that she did not authorize the payment of any disbursements on her behalf. On October 31, 2014, the balance in the respondent's IOLA account fell to $59.20, without disbursing funds to Calabrese. Of note, the affirmation submitted by the respondent's counsel in response to the instant motion does not contest the allegation that the respondent misappropriated the Calabrese settlement funds.

Conclusion

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.

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

ENTER:

Aprilanne Agostino

Clerk of the Court