In re Marks

44 A.D.2d 290, 354 N.Y.S.2d 647, 1974 N.Y. App. Div. LEXIS 5171

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 1974
• Status: Published

Opinion

Per Curiam.

Petitioner moves to confirm the report of the Referee adjudging respondent guilty of professional misconduct.

Respondent, who was admitted to practice in the Second Judicial Department on December 16, .1959, is charged, in substance, with converting to his own personal use, from time to time, $5,000 which he was holding in escrow in connection with a real estate transaction. Of said sum so converted, $4,000 was repaid within one month after termination of the initial escrow period, $250 represented an agreed legal fee and $750 was retained for a colorable claim against his client’s husband, who was allegedly the true party in interest. All repayments, except for $750, were made before any complaint was filed; and the sum of $750 was repaid shortly thereafter.

In mitigation, respondent alleges that he made temporary use of the escrow funds only for pressing family needs and notes his full co-operation with petitioner and the Referee. Respondent also submitted affidavits attesting to his community involvement and reputation for integrity.

The Referee’s finding is supported by the evidence and respondent’s admissions, and is confirmed.

While even temporary use of the escrow funds was concededly improper, and cannot be condoned, respondent readily admitted his error, co-operated fully throughout these proceedings, and is now contrite. Considering all of the circumstances of this case, we find a limited sanction justified. Accordingly, the respondent should be censured.

Markswich, J. P., Kupeerman, Murphy, Capozzoli and Lane, JJ., concur.

Respondent censured.