Appellate Division: Second Judicial Department

M297544

KS/

HECTOR D. LASALLE, P.J.

MARK C. DILLON

COLLEEN D. DUFFY

BETSY BARROS

DEBORAH A. DOWLING, JJ.

2024-02188 In the Matter of Elizabeth Diane Brody, an attorney and counselor-at-law. Grievance Committee for the Ninth Judicial District, petitioner; Elizabeth Diane Brody, respondent. (Attorney Registration No. 4029104)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Ninth Judicial District to immediately suspend the respondent from the practice of law, pursuant to Judiciary Law § 90 and 22 NYCRR 1240.9(a)(1), (3), and (5), upon a finding that she is guilty of professional misconduct immediately threatening the public interest, and pursuant to 22 NYCRR 1240.9(c) to refer the issues raised to a Special Referee, to hear and report. The Grievance Committee served and filed a notice of petition and verified petition, both dated March 18, 2024. The respondent served and filed a verified answer dated April 10, 2024. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Third Judicial Department on January 30, 2002.

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 1240.9(a)(1), (3), and (5), the respondent, Elizabeth Diane Brody, 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, Elizabeth Diane Brody, shall comply with this Court's rules governing the conduct of disbarred or 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, Elizabeth Diane Brody, 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 if the respondent, Elizabeth Diane Brody, 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 1240.15(f); and it is further,

ORDERED that the issues raised are referred to the Honorable Sandra L. Sgroi, 320 Lake Avenue, St. James, New York 11780, as Special Referee, to hear and report, with the hearing to be completed within 60 days of the date of this decision and order on motion, or as soon thereafter as practicable, and the report, which contains the Special Referee's findings on the issues and charges, to be submitted within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda.

Discussion

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based on the respondent's default in appearing for her examination under oath (hereinafter "EUO"), failure to comply this Court's subpoena and with the lawful demands of the Grievance Committee in connection with an investigation of her misconduct, and the uncontroverted evidence that she issued checks from her escrow account without sufficient funds on deposit.

By letter dated September 11, 2023, sent to the business address the respondent had registered with the Office of Court Administration (hereinafter "OCA"), the Grievance Committee attempted to inform the respondent that a sua sponte investigation had been commenced against her. This letter was returned to the Grievance Committee on September 21, 2023, with the notation "not deliverable as addressed unable to forward." The Grievance Committee thereafter spoke with the respondent via telephone and she confirmed that the OCA registered address was correct. On September 22, 2023, the Grievance Committee re-sent the September 11, 2023 letter and it was returned again with the same undeliverable notation. The Grievance Committee contacted the respondent again by telephone who then provided a different mailing address.

By letter dated October 24, 2023, sent via first class mail and certified mail to the new address provided by the respondent, the Grievance Committee informed the respondent that a sua sponte investigation had been commenced against her based on a notification from the Lawyers' Fund for Client Protection that a check issued from an escrow account that she maintained at Chase Bank, entitled "E Diane Brody Esq. Attorney at Law, Attorney Trust Account IOLA" (hereinafter "escrow account"), had been dishonored. The October 24, 2023 letter requested that the respondent submit a written answer explaining the cause of the dishonored check and to provide copies of her bank and bookkeeping records for the escrow account for the month of the dishonored check and for the six months preceding that transaction. The October 24, 2023 letter advised the respondent to comply by November 13, 2023, and that the unexcused failure to timely respond or otherwise properly cooperate with the Grievance Committee would constitute professional misconduct independent of the underlying investigation. The respondent received the certified mailing on or about November 2, 2023, but failed to submit an answer or the requested records.

By letter dated November 22, 2023, sent via certified mail, the Grievance Committee demanded that the respondent submit an answer to the complaint within 10 days of receipt and warned that she may be subject to immediate suspension from the practice of law for failing to cooperate with a disciplinary investigation. The respondent received the November 22, 2023 letter on November 29, 2023, but failed to submit an answer to the complaint.

On December 20, 2023, the respondent was personally served with a judicial subpoena duces tecum and a judicial subpoena. The judicial subpoena duces tecum compelled the respondent to produce bank and bookkeeping records for her escrow account by January 12, 2024. The judicial subpoena compelled the respondent to appear and to give testimony at an EUO on January 17, 2024. On January 11, 2024, the respondent requested and the Grievance Committee granted an adjournment for the return date of the judicial subpoena duces tecum to January 26, 2024, and an adjournment of the EUO to February 2, 2024. The respondent failed to comply with both subpoenas and timely submit a written answer to the complaint.

The Grievance Committee obtained copies of the respondent's escrow account records from Chase Bank, which indicate that the respondent issued check no. 1472 in the sum of $148,200 on August 9, 2023, when the balance on that date was $131,018.22. Furthermore, on the same date, two additional escrow account checks, each in the amount of $11,400, were issued by the respondent.

Although the motion was personally delivered to the respondent and the respondent requested an adjournment to respond, she has not done so.

Conclusion

We find that the Grievance Committee has sufficiently demonstrated that the respondent poses an immediate threat to the public interest based on the uncontroverted evidence that she, inter alia, defaulted in responding to the judicial subpoenas, and failed to cooperate with the Grievance Committee's investigation.

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)(1), (3) and (5), pending further order of this Court, and the matter is referred to a Special Referee to hear and report.

LASALLE, P.J., DILLON, DUFFY, BARROS and DOWLING, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court