Appellate Division: Second Judicial Department

M216063

E/ct

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

MARK C. DILLON

HECTOR D. LASALLE, JJ.

2016-03356 In the Matter of Stephen A. Zorn, admitted as Stephen Alan Zorn, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Stephen A. Zorn, respondent. (Attorney Registration No. 2136786)

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)(i) and (iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest based upon his failure to comply with the lawful demands of the Grievance Committee in the investigation of a complaint of professional misconduct filed against him, 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 April 12, 2016; (3) to direct the respondent to answer 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 June 1, 1987, under the name Stephen Alan Zorn.

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, Stephen A. Zorn, admitted as Stephen Alan Zorn, 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, Stephen A. Zorn, admitted as Stephen Alan Zorn, 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, Stephen A. Zorn, admitted as Stephen Alan Zorn, 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 Stephen A. Zorn, based on the verified petition dated April 12, 2016; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel to the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Renaissance Plaza, 335 Adams Street - Suite 2400, Brooklyn, NY 11201-3745, 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, Stephen A. Zorn, admitted as Stephen Alan Zorn, shall serve a copy of his answer to the verified 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 petition and any answer thereto are referred to David I. Ferber, Esq., c/o Ferber Chan Essner & Coller, LLP, 60 East 42nd Street, Suite 2050, New York, NY 10165, 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, Stephen A. Zorn, admitted as Stephen Alan Zorn, 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 comply with the lawful demands of the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts in its investigation of a complaint of professional misconduct filed against him, and other uncontroverted evidence of professional misconduct.

Leslie Bensi, as the executor of the estate of Audrey Cooper, filed a complaint against the respondent dated August 27, 2015, with the Grievance Committee which alleged that the respondent represented her in the sale of real property located in St. James, New York. In or about May 2014 Bensi, as executor, entered into a contract to sell the St. James property to Builders With Hope of NY, Inc. As the attorney for the seller, the respondent received a $21,250 down payment, which he was required to hold in escrow until the closing of title or sooner termination of the contract. Prior to the closing, Bensi discharged the respondent and retained Steven M. Lester, Esq. to represent the estate. By email on July 16, 2015, Lester requested that the respondent return the down payment to him as the contract had been terminated. On July 29, 2015, having received no response, Lester sent the respondent a letter, via FedEx Overnight, which again requested that the respondent return the down payment. The respondent failed to return the down payment or otherwise respond to Lester's inquiries.

The Grievance Committee forwarded the Bensi complaint to the respondent by letter dated September 22, 2015, to the business address that he provided to the Office of Court Administration when he last registered as an attorney. The respondent was asked to provide a written answer within 10 days of his receipt thereof. No response was received from the respondent. A second request was made by letter dated October 15, 2015, sent, by first class and certified mail, to both the respondent's business address and home address, directing him to submit a written answer to the Bensi complaint on or before October 30, 2015. Therein, the respondent was reminded that a failure to timely respond or otherwise cooperate in the matter constituted professional misconduct independent of the merits of the complaint. Postal records reflect that the certified mail was delivered to both the respondent's home address and business address on October 17, 2015. No response was received from the respondent.

The Grievance Committee learned from Bensi that the respondent operated a horse racing business named Castle Village Farm, with an office located at 106 Seventh Street, Garden City, New York. By letter dated November 10, 2015, sent to the respondent at his business address, home address, and Castle Village Farm address, the Grievance Committee directed the respondent to submit a written answer to the Bensi complaint by November 24, 2015. The respondent was further advised that, pursuant to 22 NYCRR 691.4(1) the Grievance Committee was authorized to seek the immediate suspension of an attorney who failed to cooperate with a disciplinary investigation. Only the letter sent to the respondent by certified mail at the Castle Village Farm address was returned as "unclaimed." The respondent failed to either submit a written answer, request additional time to do so, or contact the Grievance Committee.

Additional attempts to reach the respondent by telephone were made by the Grievance Committee's staff counsel in December 2015 and February 2016, without success. Thereafter, on March 3, 2016, the respondent was personally served with a so-ordered judicial subpoena and a so-ordered judicial subpoena duces tecum, commanding his appearance at the Grievance Committee's office on March 10, 2016, to give testimony and to produce his complete file in the Bensi matter. The respondent failed to appear, or otherwise contact the Grievance Committee.

The Grievance Committee ascertained that the Bensi down payment check was deposited into an account maintained by the respondent at JP Morgan Chase Bank, account no. xxxxxxx54665, in the name of Stephen A. Zorn (hereinafter the personal account). Pursuant to subpoena, the Grievance Committee obtained the relevant bank records for the personal account for the period from May 22, 2014, through December 21, 2015. A review of those records reveals that the $21,250 Bensi down payment check was deposited into the respondent's personal account at an ATM on May 27, 2014. The bank records show that after depositing the Bensi down payment, the respondent immediately began depleting those funds through ATM withdrawals and bank card purchases for personal items, such as "Maxene Cleaners," "Duane Reade," and "2nd Ave Deli." Although he had not returned the Bensi down payment, the balance in the respondent's personal account fell to $435.46 by August 22, 2015.

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 LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court