Appellate Division: Second Judicial Department

M256681

E/mm

ALAN D. SCHEINKMAN, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

MARK C. DILLON

FRANCESCA E. CONNOLLY, JJ.

2018-05078 In the Matter of Brian D. Solomon, admitted as Brian David Solomon, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Brian D. Solomon, respondent. (Attorney Registration No. 2315349)

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 1240.9(a), upon a finding that he is guilty of professional misconduct immediately threatening the public interest, and (2) 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 February 7, 1990, under the name Brian David Solomon. The Grievance Committee commenced this proceeding by serving and filing a notice of petition dated May 3, 2018, and a verified petition dated April 20, 2018, and the respondent served and filed an answer dated May 31, 2018.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

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

ORDERED that pursuant to 22 NYCRR 1240.9(a), the respondent, Brian D. Solomon, admitted as Brian David Solomon, 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, Brian D. Solomon, admitted as Brian David Solomon, 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, the respondent, Brian D. Solomon, admitted as Brian David Solomon, 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 the respondent, Brian D. Solomon, admitted as Brian David Solomon, 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 issues raised are referred to the Honorable Arthur J. Cooperman, 110-11 Queens Blvd., Apt. 10H, Forest Hills, NY 11375, to hear and report, with the hearing to be completed within 60 days of the date of this decision and order, or as soon as practicable, and to submit a report, which contains his findings on the issues and charges, within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda.

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based on uncontroverted evidence that he misappropriated client funds entrusted to him and failed to cooperate with the investigation by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts of six complaints of professional misconduct filed against him.

Misappropriation

The respondent maintained at all times an attorney escrow account at JP Morgan Chase Bank, ending in 2565, entitled "IOLA-Brian D. Solomon" (hereinafter the escrow account).

1. Alonzo Estate

On February 21, 2017, the respondent deposited $112,000 into the escrow account, representing a contract deposit for the sale of 321 51st Street, Brooklyn, New York, on behalf of the estate of Anthony Alonzo (hereinafter the Alonzo estate). By March 6, 2017, prior to any disbursements on behalf of the Alonzo estate, the balance in the escrow account had been depleted to $23,659.76. By March 27, 2017, prior to any disbursements on behalf of the Alonzo estate, the balance in the escrow account had further been depleted to $13,659.76.

On June 22, 2017, a disbursement for $200 cleared the escrow account on behalf of the Alonzo estate, bringing the total required to be maintained on deposit for the Alonzo estate to $111,800. On June 26, 2017, a disbursement for $57.17 cleared the escrow account on behalf on the Alonzo estate, bringing the total required to be maintained on deposit for the Alonzo estate to $111,742.83. By October 12, 2017, the balance in the escrow account had been depleted to $4,304.63.

On October 31, 2017, there was an electronic transfer into the escrow account from Marle Solomon in the amount of $150,000. On November 2, 2017, the sum of $111,742.83 was disbursed to the Alonzo estate by escrow check No. 4401.

2. Shenker Estate

On March 28, 2017, the respondent deposited $172,782.42 into the escrow account on behalf of the estate of Diane Shenker (hereinafter the Shenker estate). By the end of June 2017, after four disbursements were made from the escrow account on behalf of the Shenker estate, the respondent was required to maintain a balance of at least $78,881.27 in his escrow account on behalf of the Shenker estate. By July 18, 2017, the balance in the escrow account had been depleted to $68,833.30. On July 21, 2017, a $500 disbursement on behalf of the Shenker estate cleared the escrow account. On December 29, 2017, the balance in the escrow account had been depleted to $308.42.

3. Various Properties

On December 19, 2017, the respondent deposited $65,000 into his escrow account in connection with a transaction concerning property located at 337 Britton Avenue, Staten Island, New York. By December 21, 2017, before any disbursements were made concerning the Britton Avenue property, the balance in the escrow account had been depleted to $19,308.42.

On October 25, 2017, the respondent deposited $10,000 into his escrow account in connection with a transaction concerning property located at 82 McLaughlin Street, Staten Island, New York. On December 4, 2017, before any disbursements were made concerning the McLaughlin Street property, the balance in the escrow account had been depleted to $3,088.42.

On June 15, 2017, the respondent deposited $30,000 into his escrow account in connection with a transaction concerning property located at 270 Oakdale Street, Staten Island, New York. On August 7, 2017, before any disbursements were made concerning the Oakdale Street property, the balance in the escrow account had been depleted to $19,660.06.

On June 2, 2017, the respondent deposited $34,250 into his escrow account in connection with a transaction concerning property located at 678 Clove Road, Staten Island, New York. On July 18, 2017, one disbursement cleared on behalf of the Clove Road property in the sum of $250, bringing the balance required to be maintained on deposit for this property to $34,000. By July 26, 2017, the balance in the escrow account had been depleted to $23,825.21.

On August 11, 2017, the respondent deposited $50,000 in his escrow account in connection with a transaction concerning property located at 1936 New York Avenue, Brooklyn, New York. By October 25, 2017, prior to any disbursements concerning the New York Avenue property, the balance in the escrow account had been depleted to $15,804.63.

Failure to Cooperate

On July 13, 2017, the Grievance Committee received a complaint of professional misconduct from Anthony J. Badalucca alleging neglect of an estate matter. By letter dated August 17, 2017, sent first class mail, the respondent was provided with a copy of the complaint and asked to provide a written answer within 10 days of his receipt thereof. The respondent failed to answer or request additional time in which to do so. Despite two additional letters dated October 10, 2017, and November 27, 2017, both sent first class and certified mail, return receipt requested, requesting the answer and advising that failure to respond constituted professional misconduct independent of the merits of the underlying complaint, the respondent did not comply.

On October 23, 2017, the Grievance Committee received a complaint of professional misconduct from Ellen D. Thomas alleging neglect of the Shenker estate and a possible misappropriation of funds. By letter dated October 31, 2017, sent first class mail, the respondent was provided a copy of the complaint and asked to provide a written answer within 10 days of his receipt thereof. The respondent failed to answer or request additional time in which to do so. Despite a second letter dated November 27, 2017, sent first class and certified mail, return receipt requested, requesting the answer and advising that failure to respond constituted professional misconduct independent of the merits of the underlying complaint, the respondent did not comply.

On December 15, 2017, the Grievance Committee received a complaint of professional misconduct from Frances M. Penn and Barbara Penn alleging neglect of the Shenker estate and a possible misappropriation of funds. By letter dated January 4, 2018, sent first class mail, the respondent was provided a copy of the complaint and requested to provide a written answer within 10 days of his receipt thereof. The respondent failed to answer or request additional time in which to do so. Despite a second letter dated February 1, 2018, sent first class and certified mail, return receipt requested, requesting the same and advising that failure to respond constitutes professional misconduct independent of the merits of the underlying complaint, the respondent did not comply.

On January 30, 2018, the Grievance Committee received a complaint of professional misconduct from Hilary Monaco, on behalf of Lillian Brunell, alleging neglect of the Shenker estate and a possible misappropriation of funds. By letter dated February 7, 2018, sent first class mail, the respondent was provided with a copy of the complaint and asked to provide a written answer within 10 days of his receipt thereof. The respondent failed to answer or request additional time in which to do so. Despite a second letter dated March 12, 2018, sent first class and certified mail, return receipt requested, requesting the answer and advising that failure to respond constituted professional misconduct independent of the merits of the underlying complaint, the respondent did not comply.

On February 12, 2018, the Grievance Committee received a complaint of professional misconduct from Jerome Rudman alleging a possible misappropriation of the funds that the respondent was holding on behalf of the Shenker estate. By letter dated March 6, 2018, sent first class mail, the respondent was provided a copy of the complaint and asked to provide a written answer within 10 days of his receipt thereof. The respondent failed to answer or request additional time in which to do so.

On February 22, 2018, the Grievance Committee received a complaint of professional misconduct from Gilbert W. Rudman, alleging neglect of the Shenker estate and a possible misappropriation of estate funds. By letter dated March 6, 2018, sent first class mail, the respondent was provided with a copy of the complaint and asked to provide a written answer within 10 days of his receipt thereof. The respondent failed to answer or request additional time in which to do so.

By letter dated March 19, 2018, sent first class and certified mail, return receipt requested, the Grievance Committee directed the respondent to submit all outstanding answers to the complaints filed by Badalucca, Thomas, the Penns, Monaco, and the Rudmans no later than March 28, 2018. The letter further directed the respondent to appear for an examination under oath at the Grievance Committee's office on April 3, 2018. The letter advised that should the respondent fail to provide written answers or appear, a motion would be filed seeking his immediate suspension.

To date, the respondent has neither provided written answers to the complaints, nor has he contacted the Grievance Committee regarding the examination under oath.

Conclusion

In opposition to the motion, the respondent admits the factual allegations, although he disputes the charges on the ground that his clients were all ultimately made whole. No explanation was offered by the respondent for his invasions. The respondent has still yet to provide answers to the complaints filed against him. He pledges, however, to cooperate going forward.

We find that the Grievance Committee has sufficiently demonstrated that the respondent poses an immediate threat to the public interest based on his misappropriation of client funds and the repeated failure to cooperate with the Grievance Committee's investigation of multiple complaints.

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 1240.9(a), pending further order of this Court, and the matter is referred to a Special Referee, to hear and report.

SCHEINKMAN, P.J., MASTRO, RIVERA, DILLON and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court