Appellate Division: Second Judicial Department

M214751

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

MARK C. DILLON

LEONARD B. AUSTIN, JJ.

2016-02966 In the Matter of Alex Constantopes, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Alex Constantopes, respondent. (Attorney Registration No. 2659548)

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 March 28, 2016; and (3) to refer the issues raised to a Special Referee, to hear and report. Application by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, ex-parte, for leave to serve a supplemental petition dated May 3, 2016, upon the respondent. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 5, 1995.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, and the papers filed in support of the application, it is

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

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(ii) and (iii), the respondent, Alex Constantopes, 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, Alex Constantopes, 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, Alex Constantopes, 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 Alex Constantopes, based on the verified petition dated March 28, 2016, and is authorized to serve the supplemental petition dated May 3, 2016, upon the respondent; 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 and the supplemental verified petition dated May 3, 2016, the respondent, Alex Constantopes, shall serve a copy of his answer(s) to the verified petition dated March 28, 2016, and the supplemental verified petition dated May 3, 2016, upon the Grievance Committee and the Special Referee, appointed herein, and file the original(s) with the Court; and it is further,

ORDERED that the issues raised by the verified petition and supplemental verified petition, and any answer thereto, are referred to the Honorable Charles J. Thomas, 50 East 89th Street, #10-F, New York, NY 10128, 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, Alex Constantopes, 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 motion emanates from an investigation by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts of two complaints of professional misconduct.

Complaint of Thomas Feeley

Thomas Feeley retained the respondent to represent him in the sale of his cooperative apartment. On or about April 15, 2010, the respondent deposited an $18,000 down payment which he received from the purchaser into his escrow account maintained at Astoria Federal Savings entitled "WASSERMAN, CONSTANTOPES AND SAMSON, LLC, ATTORNEY ESCROW ACCOUNT/IOLA," account number ending 2771 (hereinafter the escrow account). After title closed on May 25, 2010, the respondent was required to disburse proceeds of the sale in the sum of $13,705 to Feeley. The respondent advised Feeley that he would send the proceeds of the sale and a closing statement the following week. When Feeley did not receive the closing statement or proceeds of the sale from the respondent, he filed a complaint with the Grievance Committee, dated August 24, 2010.

In his answer to the Feeley complaint, the respondent claimed that he had sent the closing statement and his escrow account check no. 0554 in the amount of $13,705 to Feeley on June 8, 2010, and provided copies of the closing statement and the front face only of check no. 0554 to the Grievance Committee. However, there was no confirmation that check no. 0554 had, in fact, cleared the respondent's escrow account.

Pursuant to subpoena, the Grievance Committee obtained bank records from Astoria Federal Savings for the respondent's escrow account, for the period from April 2010 through December 2011. Those records reflect that on March 14, 2011, the balance in the respondent's escrow account was $4,941.94, well below the $13,705 he should have been holding for Feeley.

In a subsequent letter received by the Grievance Committee on June 25, 2013, the respondent contended that in March 2011, he transferred the Feeley funds to an account that he maintained at TD Bank, entitled "WASSERMAN CONSTANTOPES AND SAMSON LLC, IOLA TRUST ACCOUNT," account number ending 2231 (hereinafter the IOLA account). The respondent enclosed monthly statements for the IOLA account, from February 2011 through December 2011. However, the bank records for the respondent's escrow account failed to confirm a $13,705 transfer to the IOLA account as claimed by the respondent. The bank records for the respondent's IOLA account confirm that respondent's check no. 2420, which was issued to Feeley in the amount of $13,705 on November 29, 2011, cleared the IOLA account on December 5, 2011.

Sacco & Fillas, LLP, Complaint

On or about June 3, 2015, the Grievance Committee received a complaint against the respondent from Elias N. Fillas, a partner in the law firm of Sacco & Fillas, LLP. Fillas alleged that the respondent, then an associate in the firm, had issued check no. 1212 from the firm's escrow account in the amount of $73,301.30 and payable to the Law Offices of Brian Yang. Fillas stated that the respondent admitted that he had issued this check without the firm's knowledge or consent, to satisfy a judgment against him in connection with a real estate transaction that he had handled on behalf of clients he represented before joining the firm.

The Grievance Committee's investigation revealed the following facts concerning the underlying real estate transaction that resulted in the judgment against the respondent. In or about August 2013, the respondent was retained by Gus Plakas and Gina Plakas to represent them in the sale of their home, located in Whitestone, New York. The purchasers were represented by Gordon Chang, Esq. By letter dated August 27, 2013, the respondent forwarded the executed contract to attorney Chang, and advised that he would deposit a $71,500 down payment into his "IOLA non-interest bearing account." Pursuant to the contract of sale, the respondent was required to hold the down payment in escrow until the closing of title or termination of the contract.

By letter to the respondent dated March 26, 2014, attorney Chang requested the contract be cancelled and that the down payment be returned and the purchasers' costs be paid, inasmuch as the sellers were unable to close the transaction. Despite attorney Chang's additional demands, the respondent did not return any funds. In view thereof, the purchasers instituted a lawsuit in Supreme Court, Queens County, which resulted in a default judgment dated March 17, 2015, against the respondent, his clients, and his former law firm, in which the defendants were ordered to pay the plaintiffs the sum of $71,500, plus costs of $200 and disbursements of $445. The respondent satisfied the foregoing judgment with check no. 1212 in the amount of $73,301.30, which he had issued from the escrow account of the law firm of Sacco & Fillas on May 21, 2015.

Pursuant to subpoena, the Grievance Committee obtained bank records from Astoria Federal Savings for the respondent's escrow account from June 30, 2013, through February 17, 2015. Those records reflect that the respondent deposited the $71,500 down payment check in the Plakas transaction into his escrow account on September 11, 2013. Further, the bank records confirm that the balance in the respondent's escrow account fell below $71,500 he was required to maintain, as follows:

Date Balance

11/26/13 $51,081.02

12/10/13 $12,081.02

3/24/14 $ 63.27

On October 29, 2015, the respondent appeared at the Grievance Committee's office for an examination under oath (hereinafter EUO). During the course of his EUO, the respondent admitted, inter alia, that on May 21, 2015, he issued check no. 1212 from the Sacco & Fillas escrow account to satisfy a personal judgment against him, without the knowledge or consent of the Sacco & Fillas law firm, and that he hand-delivered the check to Brian Yang's law office.

Based upon the foregoing, the unopposed motion and the ex-parte application are 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 based upon the verified petition dated March 28, 2016, and to serve the supplemental verified petition dated May 3, 2016, and the matter is referred to a Special Referee, to hear and report.

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

ENTER:

Aprilanne Agostino

Clerk of the Court