Appellate Division: Second Judicial Department

M214596

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

MARK C. DILLON

RUTH C. BALKIN, JJ.

2016-02400 In the Matter of Pamela Lee, admitted as Pamela Terraine Lee, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Pamela Lee, respondent. (Attorney Registration No. 2827582)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Ninth Judicial District (1) to suspend the respondent from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), upon a finding that she is guilty of professional misconduct immediately threatening the public interest based on substantial admissions she made under oath and other uncontroverted evidence of professional misconduct; (2) to authorize the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent based upon the allegations set forth in a petition verified on March 4, 2016; (3) to direct the respondent to answer the verified petition within 20 days, and (4) to refer the issues raised to a Special Referee, to hear and report. Separate motion by the respondent to allow her to participate in a diversion program, pursuant to 22 NYCRR 691.4(m). 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 20, 1997, under the name Pamela Terraine Lee.

Upon the papers filed in support of the motion by the Grievance Committee for the Ninth Judicial District and the papers filed in opposition thereto, and upon the papers filed in support of the motion by the respondent and the papers filed in relation thereto, it is

ORDERED that the motion by the Grievance Committee for the Ninth Judicial District is granted; and it is further,

ORDERED that the motion by the respondent is denied; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), the respondent, Pamela Lee, admitted as Pamela Terraine Lee, 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, Pamela Lee, admitted as Pamela Terraine Lee, 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, Pamela Lee, admitted as Pamela Terraine Lee, 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 herself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that the Grievance Committee for the Ninth Judicial District is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Pamela Lee, admitted as Pamela Terraine Lee, based on the petition verified on March 4, 2016; and it is further,

ORDERED that Gary L. Casella, Chief Counsel, Grievance Committee for the Ninth Judicial District, Crosswest Office Center, 399 Knollwood Road - Suite 200, White Plains, New York 10603, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that within 20 days after service upon her of a copy of this order, the respondent, Pamela Lee, admitted as Pamela Terraine Lee, 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 the Honorable John M. Perone, 1415 Boston Post Road, Larchmont, NY 10538, 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, Pamela Lee, admitted as Pamela Terraine Lee, 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 her 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 substantial admissions she has made under oath that she has committed acts of professional misconduct, and other uncontroverted evidence of professional misconduct.

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

Complaint of Eli Mashieh

August West Development, LLC (hereinafter August West) was the prospective purchaser in three separate real estate transactions, in which the respondent represented the seller. Eli Mashieh, as principal for August West, tendered contract down payments for each transaction to the respondent, which totaled $9,500. A review of the respondent's bank records confirms that she failed to maintain a sufficient balance during the period she was entrusted with each down payment as follows:

On July 24, 2013, the respondent deposited a down payment received from Mashieh, in the sum of $4,500, into an account she maintained at Wallkill Valley Federal Savings and Loan, entitled "Pamela Lee, P.C. Attorney Escrow," account number ending in 0575 (hereinafter the Wallkill escrow account). While the respondent was entrusted with that down payment, by the end of July 2013, the balance in the Wallkill escrow account had fallen to $501.47, well below the $4,500 that should have been on deposit for this transaction.

On August 12, 2013, the respondent deposited a down payment received from Mashieh, in the sum of $3,000, into her Wallkill escrow account. By the end of August 2013, while the respondent was entrusted with two down payments from Mashieh totaling $7,500, the balance in the Wallkill escrow had fallen to $5,813.93.

On April 29, 2013, the respondent deposited a down payment received from Mashieh, in the sum of $2,000, into an account she maintained at Citibank, entitled "Pamela Lee PC, Attorney Business Account," account no. ending in 7779 (hereinafter the Citibank business account). This account was not an attorney special account. As of May 1, 2013, the balance in the Citibank business account was depleted to $1,661.18.

Complaint of Adnan Matin

Adnan Matin, along with his wife, were the purchasers of a house in Hollis, New York. Initially, the sellers were represented by attorney Mohamed Rasul. In September 2012, the respondent, became the attorney for the sellers, and received the $10,000 down payment from attorney Rasul. In November 2013, Rasul again became the attorney for the sellers. Matin stated that both his attorney and Rasul asked the respondent to return the down payment to Rasul, to no avail.

The Grievance Committee started an investigation against the respondent based upon the Matin complaint, and the respondent returned the down payment in March 2014. During the course of the investigation, the respondent was directed by the Grievance Committee to provide an accounting of the Matin down payment from the date it was received and deposited until the date it was returned to Matin. To date, the respondent has failed to provide the Grievance Committee with such an accounting.

Complaint of Anthony DeFazio, Esq.

Anthony DeFazio represented Daniel McNamara, the purchaser in a real estate transaction in which the respondent represented the sellers. Pursuant to a contract executed by both parties in or about August 2013, the respondent received a $9,000 down payment to be held in escrow. The respondent's bank records confirm that she deposited the $9,000 down payment from McNamara into her Wallkill escrow account on August 12, 2013. The bank records further confirm that while the respondent was entrusted with the McNamara down payment she made numerous withdrawals from the Wallkill escrow account, which were unrelated to the McNamara transaction, for her own personal benefit. Indeed, the balance at the end of August 2013 was $5,813.93, well below the $9,000 she was required to maintain on behalf of the McNamara real estate transaction.

Complaint of Carol R. Mark, Esq.

Carol R. Mark represented the purchaser, Ashley Wilson, in a transaction in which the respondent represented the seller. Pursuant to the terms of the contract, Wilson tendered a $9,100 down payment, which was to be held by the respondent in escrow. The respondent's bank records confirm that the $9,100 down payment was deposited into her Wallkill escrow account on or about July 2, 2013. The bank records further reflect that while the respondent was entrusted with the Wilson down payment, the balance in the her Wallkill escrow account fell below the $9,100 she was required to maintain. Indeed, by the end of July 2013, the balance in the Wallkill escrow account had fallen to $501.47.

Complaint of Anthony Goscott

Anthony Goscott reported that on January 21, 2014, his company, SHC Equities, contracted to purchase property in Queens Village, New York. The respondent represented the seller for this transaction. The respondent's bank records confirm that the down payment in the sum of $18,900 was wired by the purchaser into the respondent's Wallkill escrow account on February 7, 2014. The respondent's bank records further confirm that, immediately after receiving the down payment and before the transaction closed, the respondent made disbursements for her personal use, which thereby depleted the funds in the escrow account reducing the balance on February 7, 2014, to $12,816.18.

Complaint of Michael Khodadian

Michael Khodadian entered into a contract of sale to purchase property owned by Jacqueline McFarlane, who was represented by the respondent. Khodadian tendered a $10,000 down payment to the respondent. The respondent's bank records confirm that the Khodadian down payment was deposited into her Citibank business account on or about February 7, 2013. The respondent's bank records further confirm that she failed to maintain a sufficient balance during the period she was entrusted with the Khodadian funds. In fact, the records establish that the balance in the Citibank business account was negative $44.02 on February 20, 2013, and the account was closed in October 2013. Khodadian's down payment was not returned until August 2014.

Complaint of Lucien Sewer

Lucien Sewer owned a condominium unit in Brooklyn, New York, along with Straia Newbold-Ferguson, as tenants in common (hereinafter sellers). The respondent represented the sellers at the sale of the condominium on September 5, 2014. During the course of her representation of the sellers, the respondent received $519,753.50, as proceeds of the sale, which was deposited into an attorney special account maintained by respondent at Citizens Bank entitled, "Pamela Lee, PC Attorney Escrow Account," account number ending in 9850 (hereinafter the Citizens escrow account), on September 8, 2014. The respondent was required to maintain the money in escrow because the sellers disputed how to divide the proceeds. Prior to a resolution of the dispute between the sellers, the respondent's bank records confirm that she made various withdrawals from the Citizens escrow account causing the balance to fall below the amount that she was required to maintain.

During the course of the investigation of the Mashieh, Matin, DeFazio/McNamara, and Mark/Wilson complaints, the respondent appeared at the office of the Grievance Committee for an examination under oath (hereinafter EUO) on April 25, 2014, during which she was asked, inter alia, to address the activity reflected in the foregoing bank accounts. A review of the transcript from the EUO reflects that the respondent admitted maintaining the foregoing escrow account at Wallkill Valley Federal Savings, that she received down payments in the Mashieh, Matin, DeFazio/McNamara, and Mark/Wilson transactions, and that she had a debit card associated with the Wallkill escrow account, which she used to make personal withdrawals therefrom.

In an affirmation in opposition to the Grievance Committee's motion, the respondent asks this Court to deny the motion, or, in the alternative, to hold it in abeyance while this Court considers the respondent's motion pursuant to 22 NYCRR 691.4(m) for diversion. The respondent's counsel contends that while his client has made mistakes, they "took place within a narrow window of time . . . in 2013, 2014, and 2015." The respondent's counsel concedes that there were "balance below situations" but states that "all client funds . . . have either been paid to the appropriate persons or are currently protected in a segregated escrow account." Specifically, the respondent's counsel contends that the down payments in connection with the Mashieh, Matin, DeFazio/McNamara, Mark/Wilson, Goscott, and Khodadian complaints have all been returned, and that the proceeds the respondent received in September 2014 from the Sewer Newbold-Ferguson sale, were deposited on August 3, 2015, in a separate interest-bearing account at Citizens Bank.

Concerning the respondent's motion for permission to allow her to participate in a diversion program pursuant to 22 NYCRR 691.4(m), she contends that the bases for the relief sought includes, inter alia, a claim that the misconduct was caused by her impairment from alcohol abuse, that no clients were harmed by the misconduct, that she has little to no recollection of engaging in the conduct alleged, that she admitted her mistakes and has taken steps to address her impairment through treatment.

We find that the respondent, inter alia, has admitted under oath that during a period spanning almost three years, she failed to maintain appropriate balances in her escrow account for multiple real estate transactions. The respondent's bank records, among other things, confirm that she made numerous unauthorized withdrawals from her escrow account, by use of a debit card, for personal purposes. 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)(ii) and (iii), pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent, and the matter is referred to a Special Referee, to hear and report. While the respondent seeks, in essence, a stay of these proceedings to enable her to participate in a diversion program pursuant to 22 NYCRR 691.4(m), we deny the respondent's motion in view of the seriousness of the respondent's misconduct, and in the best interests of the public.

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

ENTER:

Aprilanne Agostino

Clerk of the Court