Appellate Division: Second Judicial Department

M209784

E/ct

RANDALL T. ENG, P.J.

MARK C. DILLON

RUTH C. BALKIN

JOHN M. LEVENTHAL

JEFFREY A. COHEN, JJ.

2016-00437 In the Matter of Charles A. Petitto, admitted as Charles Angelo Petitto, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts, petitioner; Charles A. Petitto, respondent. (Attorney Registration No.1941533)

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, 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 set forth in a verified petition dated January 12, 2016; (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 Second Judicial Department on August 1, 1984, under the name Charles Angelo Petitto.

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, Charles A. Petitto, admitted as Charles Angelo Petitto, 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, Charles A. Petitto, admitted as Charles Angelo Petitto, 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, Charles A. Petitto, admitted as Charles Angelo Petitto, 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 Charles A. Petitto, admitted as Charles Angelo Petitto, based on the verified petition dated January 12, 2016; and it is further,

ORDERED that Diana M. Kearse, Chief Counsel to the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Renaissance Plaza, 335 Adams Street, Brooklyn, NY 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, Charles A. Petitto, admitted as Charles Angelo Petitto, 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 Honorable Jerome M. Becker, c/o Douglas Becker, Esq., 9 E. 40th St., 8th Floor, New York, NY 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, Charles A. Petitto, admitted as Charles Angelo Petitto, 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 Second, Eleventh, and Thirteenth Judicial Districts of multiple complaints of professional conduct. In 2014 and 2015, the Grievance Committee received complaints of professional misconduct against the respondent from or involving the following individuals: Yvette Merilan, Louise Louis, Enrique Valdez, Shavonne Boone, Euslyvia Charles and Joseph Adetunji. The majority of the complaints alleged that the respondent either neglected legal matters or failed to account for funds entrusted to him. With respect to each of the complaints, the respondent was forwarded a copy of the complaint and directed to provide a written answer within 10 days of his receipt thereof. With respect to three of the complaints (Boone, Charles and Adejunti), the respondent failed to submit any answer, despite being sent a second letter via certified mail.

With regard to the complaint by Yvette Merilan, who alleged that the respondent failed to account for $25,000 that had been entrusted to him, the respondent submitted an answer wherein he asserted that he had negotiated a loan for $20,000, which he agreed to pay in $5,000 installments. In reply, Merilan stated that she had not loaned any money to the respondent, that the respondent sent her three $5,000 checks which had bounced, and that she had obtained a judgment against him in the amount of $23,711.30. By letter dated October 16, 2015, via regular and certified mail, sent to the respondent's home address, after he closed his office, the respondent was directed to appear at the Grievance Committee's office for an examination under oath. He failed to do so on any of the adjourned dates, with one exception noted below, where he did not provide testimony.

With regard to the remaining complaints that he answered, the respondent submitted short, four- or five-sentence answers. When advised that his answers were inadequate, and directed to submit additional answers, along with various specified documentation, the respondent failed to do so, despite additional letters and multiple phone calls.

As noted above, by letter dated October 16, 2015, sent to the respondent's home address, the respondent was directed to appear at the Grievance Committee's office on November 4, 2015, to be examined under oath regarding the Merilan matter and multiple other pending matters, and to provide specified documentation relating to them. On October 18, 2015, the respondent called the Grievance Committee and left a message stating that he intended to seek counsel regarding the Charles matter and that he would provide written confirmation "within the next day or so." He failed to do so. Following an adjournment granted at his request, the respondent appeared on November 5, 2015, but stated that he intended to retain counsel with regard to the outstanding complaints. At the respondent's request, the examination was re-scheduled for November 12, 2015, at 10:00 a.m., but he failed to appear on that date.

By letter dated November 16, 2015, sent to his home by certified and regular mail, the respondent was directed to appear on November 30, 2015, at 10:00 a.m. On November 16, 2015, at 4:12 p.m., the Grievance Committee received a letter from the respondent, stating that he consulted with an unnamed attorney who had not decided whether to represent him, and that he would need additional time to retain this attorney or another attorney. By letter dated November 24, 2015, sent to the respondent's home address, the respondent's written request for additional time was denied, and he was directed to appear on November 30, 2015, and bring all the documents previously identified. The respondent failed to appear on November 30, 2015. However, on November 30, 2015, at 1:56 p.m., the Grievance Committee received a letter from the respondent, stating that on November 10, 2015, an unnamed attorney had advised him not to attend. The respondent also stated that he would "respond to each and every case in writing."

By letter dated December 4, 2015, sent to the respondent's home address by certified and regular mail, the Grievance Committee noted the respondent's failure to appear on November 12, 2015, and November 30, 2015. The letter directed the respondent to provide all outstanding answers and requested documentation no later than December 21, 2015, and again advised the respondent that his failure to cooperate constituted professional misconduct independent of the merits of the underlying complaints. Lastly, the letter advised the respondent that his continuing failure to submit answers and respond to the lawful demands made by the Grievance Committee would result in a motion for his immediate suspension. This letter was not returned undelivered. Since that time, neither the respondent nor an attorney on his behalf has contacted the Grievance Committee or provided the additional answers, additional information, or bank records, as directed.

The allegation that the respondent misappropriated client funds is based on the complaint of Euslyvia Charles. On or about March 26, 2015, Charles, as purchaser, forwarded to the respondent, the seller's attorney, a $30,000 down payment check and signed contract of sale, which directed the respondent to hold the money in escrow. On or about April 1, 2015, the respondent deposited the $30,000 check into his account at Citibank, which did not contain any designation indicating it was an escrow account.

Subsequently, the seller and Charles executed an escrow agreement, designating the respondent, as the escrow agent, to continue to hold the $30,000 down payment and an additional $20,000 from the proceeds of the sale, for a total of $50,000, after the closing, until the terms of the escrow agreement were satisfied. On April 14, 2015, the closing date, the respondent was entrusted with a check in the amount of $20,000. On or about May 28, 2015, the respondent deposited the $20,000 check into his nonescrow Citibank account.

At the time of the $20,000 deposit, the balance of the Citibank account was approximately $9,000 short of the total necessary to preserve the down payment deposit that was supposed to be maintained in escrow. This shortfall was the result of, among other things over 20 cash withdrawals, and over 50 debit card purchases. It is uncontroverted that none of these cash withdrawals or debit card purchases were related to the subject real estate transaction.

In June 2015, the seller authorized the respondent to immediately release $50,000 to Charles, or her attorney. On June 22, 2015, the respondent withdrew $30,000 from the Citibank account, purchased a bank check in that amount, and delivered the bank check to Charles.

The balance in the Citibank account at the time the $30,000 check was issued was approximately $5,400, and by July 1, 2015, the balance fell to $9.20. The shortfall was the result, among other things, of approximately 20 additional cash withdrawals and approximately 50 additional debit card purchases. It also is uncontroverted that none of these cash withdrawals or debit card purchases were related to the subject real estate transaction.

To date, the respondent has failed to release the remaining $20,000 to Charles or her attorney.

Although personally served with a copy of the Grievance Committee's motion on January 19, 2016, 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 a clear misappropriation of client funds by the respondent in the Charles matter; the respondent's failure to submit answers to three complaints, and the respondent's failure to appear for an examination under oath, despite having been granted several adjournments.

Based on 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., DILLON, BALKIN, LEVENTHAL and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court