Appellate Division: Second Judicial Department

M223912

E/ct

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

MARK C. DILLON

RUTH C. BALKIN

JEFFREY A. COHEN, JJ.

2016-07347 In the Matter of Harry A. Cardillo, admitted as Harry Anthony Cardillo, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Harry A. Cardillo, respondent. (Attorney Registration No. 2505956)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, inter alia, (1) to suspend the respondent from the practice of law pending the consideration of charges of professional misconduct against him pursuant to former 22 NYCRR 691.4(l)(1)(iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest based upon 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 alleged in a verified petition dated July 14, 2016; 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 December 16, 1992, under the name Harry Anthony Cardillo.

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 pursuant to 22 NYCRR 1240.9(a), as now in effect, the branch of the motion which is to suspend the respondent, Harry A. Cardillo, admitted as Harry Anthony Cardillo, is granted, and, Harry A. Cardillo, admitted as Harry Anthony Cardillo, 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 Harry A. Cardillo, admitted as Harry Anthony Cardillo, shall promptly comply with this Court's rules governing the conduct of disbarred and suspended attorneys (see 22 NYCRR 1240.15); and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this Court, Harry A. Cardillo, admitted as Harry Anthony Cardillo, 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 if Harry A. Cardillo, admitted as Harry Anthony Cardillo, 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 1240.15(f); and it is further,

ORDERED that the branch of the motion which is for leave to institute and prosecute a disciplinary proceeding is granted, and 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 Harry A. Cardillo, admitted as Harry Anthony Cardillo, based on the verified petition dated July 14, 2016; 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, NY 11201, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that the Grievance Committee shall serve Harry A. Cardillo, admitted as Harry Anthony Cardillo, with a copy of this decision and order on motion together with a notice of petition and the verified petition dated July 14, 2016, pursuant to 22 NYCRR 1240.8(a)(1), and file the notice of petition and the verified petition dated July 14, 2016, as well as proof of service, with this Court, within 20 days after receipt of a copy of this decision and order on motion; and it is further,

ORDERED that the branch of the motion which is to refer the issues raised to a Special Referee, to hear and report, is granted, and the issues raised by the verified 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, with the hearing to be completed within 60 days of the date of this order, or as soon as practicable, 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 the motion by the Grievance Committee is otherwise denied as unnecessary.

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon the uncontroverted evidence of professional misconduct.

The Complaint of Maksim Shaposhnikov

On or about January 11, 2013, the Grievance Committee received a complaint from Maksim Shaposhnikov, who retained the respondent to represent him in a "no fault car accident" matter. According to Mr. Shaposhnikov, he agreed to a $6,000 settlement, and signed a release which he sent to the respondent on June 6, 2012. Thereafter, Mr. Shaposhnikov did not receive his settlement money and was unable to reach the respondent. Mr. Shaposhnikov then contacted the insurance company and obtained a copy of a June 14, 2012, settlement check, which was drawn to Mr. Shaposhnikov and Cardillo Law PC, as attorney, in the sum of $7,000. Mr. Shaposhnikov claims that he never signed the settlement check, and as of the filing of the complaint, he had not received any funds from the respondent. With his complaint, Mr. Shaposhnikov provided a copy of the $7,000 settlement check.

In response to the grievance complaint, by letter dated February 28, 2013, sent from an address in Bradenton, Florida, the respondent advised, among other things, that on January 11, 2013, he sent Mr. Shaposhnikov a check in the amount of $4,666.67, representing his share of the settlement.

During the course of the Grievance Committee's investigation of the Shaposhnikov complaint, by communication dated October 7, 2013, the respondent provided statements from his escrow account at JP Morgan Chase Bank, account number ending 3968, entitled "Harry A. Cardillo, Attorney Trust Account-IOLA" (hereinafter the escrow account) for the period June 2012 through February 2013. Those records reflect that during the time that the respondent was entrusted with Mr. Shaposhnikov's settlement funds, the balance in his escrow account fell below $4,666.67.

Pursuant to subpoena, the Grievance Committee obtained additional records for the respondent's escrow account directly from JP Morgan Chase Bank, for the period June 2012 through March 2014. Those records confirm that the respondent deposited Mr. Shaposhnikov's $7,000 settlement check into his escrow account on June 18, 2012, and that the account balance fell below $4,666.67 for several days in August 2012 and in September 2012, and remained below $4,666.67 between October 9, 2012 and January 8, 2013. Further, as reflected in the bank records, on January 11, 2013, the respondent issued check no. 1478 from his escrow account in the amount of $4,666.67 to Mr. Shaposhnikov.

The Complaint of Inna Shvartsman

On or about November 1, 2013, the Grievance Committee received a complaint from Inna Shvartsman, who retained the respondent to represent her in a personal injury action, and to compromise a workers' compensation lien. According to Ms. Shvartsman, the personal injury action was settled for $45,000, and the workers' compensation lien was settled for $20,000. Ms. Shvartsman received $17,900 as her share of the settlement in March 2013, but she was informed by the attorney for the workers' compensation carrier that the respondent failed to satisfy the $20,000 lien.

By communication dated December 20, 2013, in response to Ms. Shvartsman's complaint, the respondent stated that the lien had been satisfied "in accordance with the terms of the settlement" agreement. The attorney for the workers' compensation carrier advised Ms. Shvartsman that the lien had been satisfied by letter dated January 20, 2014.

As reflected in the bank records obtained by the Grievance Committee pursuant to subpoena, the respondent deposited the $45,000 settlement check into his escrow account on January 28, 2013. Prior to disbursing any funds, by February 22, 2013, the escrow account balance fell to $22,019.63, and by March 12, 2013, this escrow balance was further reduced to $10,269.63. On or about March 19, 2013, the respondent issued check no. 1501 from his escrow account, in the amount of $17,900 to Ms. Shvartsman. Although, the respondent was required to maintain at least $20,000 in his escrow account to satisfy the workers' compensation lien, the balance fell below $20,000 during the period from June 3, 2013 through January 3, 2014. The workers' compensation lien was satisfied on January 16, 2014.

Based upon the foregoing, the branches of the motion which are to suspend the respondent, to authorize the Grievance Committee to institute and prosecute a disciplinary proceeding against him based upon the verified petition dated July 14, 2016, and to refer the matter to a Special Referee, to hear and report, are granted, and the respondent is immediately suspended from the practice of law, pending further order of this Court; the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against the respondent based upon the verified petition dated July 14, 2016; and the matter is referred to a Special Referee, to hear and report.

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

ENTER:

Aprilanne Agostino

Clerk of the Court