In re Abram

304 A.D.2d 123, 760 N.Y.S.2d 173, 2003 N.Y. App. Div. LEXIS 3221
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 24, 2003
StatusPublished
Cited by1 cases

This text of 304 A.D.2d 123 (In re Abram) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Abram, 304 A.D.2d 123, 760 N.Y.S.2d 173, 2003 N.Y. App. Div. LEXIS 3221 (N.Y. Ct. App. 2003).

Opinion

OPINION OF THE COURT

Per Curiam.

The respondent was served with a petition containing six charges of professional misconduct. His answer and amended answer consisted of a general denial of the charges. At the prehearing conference, the respondent admitted, in part, the factual allegations contained in the petition. At the hearing, the petitioner’s case consisted of 65 exhibits and the testimony of three witnesses. The respondent testified on his own behalf, called one witness, and produced eight exhibits. At the conclusion of the hearing, the Special Referee sustained Charges One, Two, Three, and Six, and did not sustain Charges Four and Five. The petitioner now moves to confirm the Special Referee’s report insofar as it sustained Charges One, Two, Three, and Six, and to disaffirm it insofar as it did not sustain Charges Four and Five. The respondent opposes the petitioner’s motion only insofar as it seeks to disaffirm the Special Referee’s failure to sustain Charges Four and Five, and he asks the Court to limit the sanction imposed to a public censure.

Charge One alleged that the respondent engaged in conduct prejudicial to the administration of justice, in violation of Code of Professional Responsibility DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5]), and conduct adversely reflecting on his fitness as a lawyer, in violation of DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]), by failing to comply with orders and judgments of the Family Court, Suffolk County, which resulted in his repeated arrest and incarceration.

On October 1, 1996, paternity and child support proceedings were commenced in the Family Court, Suffolk County, against the respondent regarding a child, born out of wedlock on April 22, 1995 (hereinafter the paternity matter). The paternity matter was scheduled for trial on October 15, 1997. Although duly served with notice thereof, the respondent failed to appear. After an inquest, the Honorable Kerry Trainer entered an order of filiation declaring the respondent to be the father of the child and immediately referred the issue of support to a Hearing Examiner. On October 15, 1997, after an inquest, Hearing Examiner Barbara Lynaugh issued an order, inter alia, requiring the respondent to make weekly payments of $372.48 for the benefit of the child and to pay a counsel fee in the sum of $4,500 within 60 days to Frederick Stern. The order with notice of entry was duly served on the respondent by mail on [125]*125October 27, 1997. As of March 16, 1998, the respondent failed to make any payments whatsoever for the benefit of the child or Stern.

On March 16, 1998, the Suffolk County Department of Social Services (hereinafter the DSS) commenced proceedings against the respondent in the Family Court, Suffolk County, based on his willful failure to comply with the order dated October 15, 1997. At the time, the respondent was in arrears in the amount of $28,308.48. On May 26, 1998, all parties appeared for a hearing before Hearing Examiner Lynaugh. At the conclusion of the hearing, it was adjudged that the respondent had knowingly, consciously, and voluntarily disregarded the order dated October 15, 1997. The findings of the Hearing Examiner were immediately confirmed by a Judge of the Family Court, and the respondent was immediately taken into custody and committed to the Suffolk County Correctional Facility for a period of six months. Such commitment was to be suspended and the respondent released from custody upon the payment of $31,000, to be applied as directed by the court. The respondent remained incarcerated until May 27, 1998, when he arranged to pay the requisite sum and was released.

On November 2, 1998, the DSS commenced a second proceeding in the Family Court, Suffolk County, against the respondent for his failure to comply with the order dated October 15, 1997, in the paternity matter. On June 8, 1999, after a hearing, Hearing Examiner Lynaugh found that the respondent had failed to comply with the order and that he owed support arrears in the amount of $12,761.

As of March 4, 1999, the respondent had not paid to Frederick Stern any part of the $4,500 in counsel fees. On that date, upon Stern’s application, a judgment was entered in his favor and against the respondent by the Family Court, Suffolk County, in the amount of $4,500, plus costs, disbursements, and interest. The judgment with notice of entry of the judgment was served on the respondent on May 12, 1999.

On October 25, 1999, the DSS commenced a third proceeding against the respondent in the Family Court, Suffolk County, based on his failure to comply with his obligations in the paternity matter. It sought recovery of arrears then due and owing in the total amount of $25,812.26 ($21,084.79 in child support and $4,727.47 due Stern). The arrears included $20,428.24 secured by judgments against the respondent.

On March 20, 2000, after a hearing, Hearing Examiner Lynaugh found that the respondent knowingly and voluntarily [126]*126disregarded the October 15, 1997, order of the Family Court, Suffolk County. On March 21, 2000, the Hearing Examiner’s findings were confirmed by a Judge of the Family Court, and the respondent was immediately committed to the Suffolk County Correctional Facility for a period of 88 days. Such commitment was to be suspended and the respondent released from custody upon the payment of $8,808 for the unsecured arrears. The respondent arranged such payment later that day and was released.

On October 5, 2000, the DSS commenced a fourth proceeding against the respondent in the Family Court, Suffolk County, based on his continued failure to comply with his obligations in the paternity matter. It sought the recovery of arrears due and owing in the total amount of $31,101.20 ($25,961.80 in child support and $5,139.40 due Stern). On April 16, 2001, after a hearing, Hearing Examiner Philip Goglas found that the respondent willfully failed to comply with the October 15, 1997, order of the Family Court, Suffolk County. At the conclusion of the hearing, at which the respondent was present, the Hearing Examiner directed the respondent to immediately appear before the Honorable Jeffrey Spinner of the Family Court, Suffolk County, for a confirmation hearing. The respondent deliberately ignored the Hearing Examiner’s directive, failed to appear before Judge Spinner, and left the courthouse. When the respondent failed to appear, Judge Spinner issued a warrant for his arrest.

On Friday, April 20, 2001, the respondent was taken into custody by the Suffolk County Sheriff. He was produced and arraigned before Judge Spinner, who fixed bail at $100,000, remanded him to the Suffolk County Correctional Facility, and adjourned the matter to Monday, April 23, 2001. On that day, the respondent was produced before Judge Spinner, who confirmed the earlier findings of the Hearing Examiner and ordered the respondent committed to the Suffolk County Correctional Facility for a period of six months. The commitment was to be suspended upon the respondent’s payment of $27,500, to be applied as directed by the court. Later that day, the respondent arranged to pay the $27,500 and was released.

Charge Two alleged that the respondent engaged in conduct prejudicial to the administration of justice, in violation of Code of Professional Responsibility DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5]), and conduct adversely reflecting on his fitness as a lawyer, in violation of DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]), by failing to cooperate with the petitioner’s investiga[127]*127tion of the complaint that, in part, formed the basis of Charge One.

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Related

In re Hawthorne
309 A.D.2d 285 (Appellate Division of the Supreme Court of New York, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
304 A.D.2d 123, 760 N.Y.S.2d 173, 2003 N.Y. App. Div. LEXIS 3221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-abram-nyappdiv-2003.